The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue : The issues to be resolved in this proceeding concern whether the Hernando County School Board (Board), the Petitioner, has just cause to terminate the Respondent's employment, related to alleged excessive absences, during the 2007-2008 school year.
Findings Of Fact The Petitioner Board is charged with operating and administering the Hernando County School District. Through its principals and human resources personnel the Board is charged with operating and regulating all personnel matters, including the monitoring of attendance for all employees at each school operated by the Board. Mr. Charles Johnson was the Principal at Westside Elementary School (WES) for the 2007-2008 school year at issue in this case. He had been the principal at that school since 1988 and it was his duty, among other personnel matters, to monitor the attendance of his employees at the school. The Respondent was employed at WES during the 2007-2008 school year. She had been hired to work there for the first time that year. She had, however, been employed by the Board as a teacher since 1997. Prior to the school year in question, the Respondent had a very favorable record as a teacher for the Board. Soon after the Respondent came to work at WES for the 2007-2008 school year she began to exhibit a pattern of frequent absences. The principal, Mr. Johnson, became concerned with Respondent's absences in late September of 2007 because a parent-teacher conference was imminent and report cards or progress reports were due for the first nine-week grading period around that time. The principal maintained a record of the teachers' attendance, including the Respondent. He created a log documenting the Respondent's absences from August 2007 through January 2008. The Respondent was absent five days in August and present for ten days. She was present for ten days and absent for nine days in September. The Respondent was absent on both October 1 and 2, 2007, as well. The Respondent called the principal's secretary on October 2nd to advise that she had a doctor's appointment on the third and would return to work on the fourth. The Respondent did not return to work on October 4th, however. The principal thereupon sent the Respondent a letter advising her that her absences were excessive and she needed to report to work by October 10th. He gave her some lead time in getting back to work because he was unaware of the reasons why she was missing so much work. He also wanted to allow for any delays due to mailing time for his letter, which was mailed on October 4th. The Respondent called the principal and spoke with him on October 8th and advised him that she had been sick and had been "beaten-up." She assured him that she would return to work the next day. The Respondent, however, did not return to work the next day and also failed to come to work on October 10, 2007, as directed in the principal's letter. She did call the school office and leave a voice mail on the principal's phone that morning assuring him that she would be at work the next day, which was October 11th. The Respondent did not return to work on October 11th as promised. Because of her failure to return to work, the principal sent a letter to her dated October 15, 2007, advising her that he had scheduled a "pre-disciplinary hearing" for October 19, 2007, which she should attend. The purpose of that hearing was to give her an opportunity to explain her "excessive absenteeism." The Respondent thereupon was absent from work every day during the week of October 15th, and then failed to attend the scheduled hearing or meeting on October 19th. Moreover, she did not call or otherwise communicate with the principal that week to explain her absences or why she had missed the meeting. Thereafter, the Principal sent the Respondent a letter dated October 23, 2007, again scheduling a pre-disciplinary hearing. The hearing was scheduled for October 30th. The letter was both mailed and personally delivered to the Respondent. Upon receipt of the hand-delivered copy of the letter, the Respondent phoned the principal and spoke to him. According to Mr. Johnson, the Principal, the Respondent told him in this conversation that she had not opened his previous letters, but she assured him she would be at work the following day. The Respondent, however, did not return to work on the following day, which was October 25, 2007, nor did she attend the pre-disciplinary hearing on October 30th, which Mr. Johnson had scheduled. Mr. Johnson, therefore, sent a letter to the Respondent on October 31st advising her that he was recommending to the Superintendent that she be suspended with pay. He sent a letter to the School District office of Labor Relations and Professional Standards on the same day referring the matter to that office, along with copies of all the relevant documents he had which evidenced what be believed were excessive absences. Because of her 10 days or more of consecutive absences, under Board policy, the Respondent was administratively placed on unpaid leave of absence, instead of being suspended with pay as recommended by her principal. The unpaid leave of absence had an effective date of October 15, 2007. Such a leave of absence is designed to enable a principal to replace a teacher in the situation of the Respondent with a permanent certified teacher, to assure continuity of effective instruction. The Respondent was sent instructions regarding her leave of absence by mail on October 15, 2007, from the Human Resources Department of the District. She was thus informed that she could elect to go on extended personal leave or on family medical leave. No information was received from the Respondent in response to this communication, however. The Respondent maintains that she provided a document concerning family medical leave. That form, however, was merely a medical certification statement and not an actual application or request for family medical leave. Moreover, the evidence shows that the Respondent was not qualified for family medical leave, even had a proper application been submitted, because she had not worked a sufficient number of hours in the preceding school year to establish her entitlement to family medical leave under the relevant rules and policies. An employee conference was held with the Respondent on November 2, 2007. The Respondent, the principal, and Ms. Barbara Kidder, who is the Director of Labor Relations and Professional Standards for the School District, were in attendance at the meeting. The Respondent assured them at the meeting that she would return to work the following Monday, November 5th and thereafter maintain satisfactory attendance. She also agreed to seek assistance through the Employee Assistance Program (EAP) and agreed to advise the school when she had appointments with that program. It was not unusual for Mr. Johnson to have continued the disciplinary process and communication with the Respondent about her absenteeism throughout the month of October, even though she was on a leave of absence. She had been placed on that leave of absence by the District so that it could hire a replacement teacher. It was not a leave she had voluntarily requested. Moreover, even without considering the days of absence while she was on her administrative leave of absence, the principal had a basis for pursuing disciplinary action for the absences she had previously incurred. November 5, 2007, was approved by the District as the Respondent's "early return date" from that leave of absence, which had started on October 15th. Indeed, the Respondent came to work on Monday, November 5th. She was, however, absent for the rest of that week. She did not contact either the principal or his secretary concerning those absences. She called the automated system for assigning substitute teachers (SEMS), which does not constitute nor grant any excuse for an absence. It is merely a means of scheduling or assigning substitute teachers. School did not meet on November 12th, a Monday. On Tuesday, November 13th the Respondent called and left a voice mail message for the principal advising that she had been to the doctor on the Friday before for strep throat and a respiratory infection. She assured him that she would be back the following day November 14, 2007. The Respondent, however, did not report to work on November 14th, but instead called and spoke with the principal around 10:00 a.m., advising him that she just left the doctor's office. She advised him that she had a note indicating she would be clear to report to work on the following Monday. The Principal reminded her that the next week was Thanksgiving week and no school met that week. The Respondent then agreed to come to work on Monday, November 26th and advised that she would have the doctor's note with her at that time. The Respondent failed to report to work on November 26th, as she had promised and did not contact the Principal or his secretary concerning that absence. She also missed work November 27th through the 30th, and did not call the principal or his secretary to explain those absences. The principal accordingly sent her another letter on November 29th advising her that a pre-disciplinary meeting was again scheduled for December 4th to discuss her absences. She did not attend the pre-disciplinary meeting on December 4th nor did she report to work that entire week. She failed to contact the principal or his secretary and explain her absences from work that week and her absence from the scheduled meeting. On December 5, 2007, the principal sent another letter to the Respondent advising her that he was referring her case or situation to the labor relations office. On that same date he sent a memorandum to the director of the labor relations office enclosing all the relevant documentation he had regarding the absences. That office then sent the Respondent a letter on December 5th which advised her that a pre-disciplinary meeting was scheduled for December 12th. The pre-disciplinary meeting was held on December 12th and the Respondent and Ms. Kidder were in attendance. Ms. Kidder gave the Respondent information on the EAP and advised her that she would be reviewing the Respondent's case with the Human Resources Office and the Petitioner's attorney. On December 14th the Respondent met with Ms. Kidder and the principal. The Respondent on this occasion was given a "letter of direction," advising her that she would be assigned a "mentor" and advising her of procedures for absences. The procedures she was directed to follow for absences included a stipulation that a doctor's note would be required for all future absences. The letter of direction given to the Respondent on December 14th contained the following requirements or procedures for the Respondent to follow with regard to her work and her absences: She was be assigned a "mentor" teacher to assist her with transitioning back to work. She was to report to administration each day before reporting to her classroom. She was to meet weekly with administration to review her attendance and her progress. She was expected to be in attendance each day starting Monday, December 17, 2007, and was to follow the Principal's specific directions regarding the process for obtaining approval for sick leave. She was to contact the principal if she had any questions concerning working hours, timesheets, absences, tardiness, sickness at work, leaving the building or related employee issues. She was being placed on probationary status for one year and any future violations of Petitioner's policies or procedures or any administrative directives would constitute "just cause" for disciplinary action up to and including termination. She was expected to contact EAP and attend counseling sessions as recommended by the staff. She was then to document the completed counseling sessions to her principal. During the December 14, 2007, meeting, the Respondent agreed to return to work as directed. She gave no indication that she would be unable to return to work or perform her duties or that there would be any restrictions on her ability to return to work. The Respondent provided no doctor's notes explaining illnesses or absences during either the December 14th meeting or the November 2nd meeting with the Principal. In fact, the Respondent did not return to work the following Monday, December 17th. She also missed the rest of that week and did not contact administration directly about her absences as she had been directed to do on December 14th and as the "letter of instruction" had directed her to do. The Respondent produced phone records at the hearing and testified that certain calls represented conversations with either the Principal or his secretary. This was in an effort to show that she had properly explained her absences. She did not, however, provide corroborating testimony as to which of the calls on the records were specific to a person as opposed to simply leaving a voice mail for that number or receiving no answer at all. In any event, Ms. Kidder sent the Respondent a letter on December 20th reminding her that it was her responsibility to provide a doctor's note in explanation of her absences and that she was supposed to return to work on December 17, 2007. The letter reminded the Respondent that her attendance was critical. The last week of December 2007 and the first week of January 2008, constituted the District's school Christmas Break. The first day of school following Christmas Break was Monday, January 7, 2008. The Respondent did not return to work that day, even though she later presented notes from Doctors Khalil and Alshaar indicating that she was able to work that day. The Respondent did report for work on January 8th, but then was absent for January 9th and 10th. She reported for work on January 11th, but later produced a note from Dr. Alshaar indicating that she should be excused for that day. Ms. Kidder sent the Respondent another letter on January 25, 2008, advising her that a "pre-determination hearing" had been scheduled for February 1, 2008, to again review her absences since January 7, 2008. The Respondent acknowledges that she received the correspondence from the Petitioner referenced above. She was also aware of the Petitioner's polices and procedures on attendance and leaves of absence. She signed a receipt indicating that she had received the Staff Handbook which outlines specific policies and references the School Board Policy Manual in general. Additionally, the Respondent acknowledged to the Principal that "time and attendance" were reviewed during her "new employee orientation" at the school. Teacher absences have a negative impact on the classroom, the students and the school. The principal had to ask other teachers to cover the Respondent's classroom and to use substitutes. A teacher's credibility and the trust of students is impaired when the teacher is constantly absent or alternately appearing or being absent from the classroom on a frequent basis. Mr. Johnson established that the Respondent had the worst attendance record he had experienced with a teacher in his 20 or so years as a principal. Her absences for the 2007-2008 school year far exceeded that of any other teacher at the school. The Collective Bargaining Agreement covering teachers in Hernando County, including the Respondent, provides that sick leave is allowable without loss of pay as provided for by Florida Law and that personal leave should be approved by work site administrators, except in cases of substantial emergency. The Hernando County Staff Handbook is in evidence as Petitioner's Exhibit 24. It provides the details of the Board's policies and procedures on absences, leaves of absence, sick leave and leaves made necessary by sudden emergencies, etc. The general information concerning leaves of absence, the policies and procedures concerning family medical leave, notification of absence, absence without leave, sick leave, depicted in that exhibit are incorporated in these Findings of Fact by reference. Those policies and procedures include the requirement that where there is any doubt as to the validity of a sick leave claim, the superintendent may require the filing of a written certification of illness from a licensed physician or other supporting evidence if personal illness is not involved. It then provides the consequences of false claims for sick leave, proceeding to list cancellation of a teacher's contract or for action seeking revocation of a teaching contract. It also includes a provision that an application for sick leave due to extended illness shall have attached to it a statement from a practicing physician certifying that such leave is essential and indicating the probable duration of the illness and the needed leave. There is no question, given the pattern of extensive absences, and given the Respondent's lack of communication with the principal, or even the principal's secretary, concerning the reason for her absences or the legitimacy of any illness, that the Principal could have doubts as to the validity of any sick leave or illness claims. He was thus proceeding within the appropriate policies contained in the Manual and Handbook in requiring physician certification or proof concerning illness or absences, which mostly was not provided by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County Florida terminating the Respondent from her position as a teacher with that School District. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 4th day of December, 2008. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Jennifer M. Gallagher 1223 Sanger Avenue Spring Hill, Florida 34608 Wayne S. Alexander, Ed.D. Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue Whether the Petitioner was absent from work without authorization for three consecutive workdays so that she is deemed to have abandoned her position and to have resigned as a Career Service employee.
Findings Of Fact Petitioner Viola D. Cooper began her employment with Respondent Department of Health and Rehabilitative Services on October 19, 1987. She held the position of Support Service Aide at the Landmark Learning Center in Opa Locka, Florida. When she was hired, she was given a copy of the Department's Employee Handbook which contains attendance and leave policies. She signed a receipt for the handbook which acknowledged that she understood it was her responsibility to review the handbook in detail. On several occasions, Petitioner was counseled by her immediate supervisor regarding the proper procedures to follow when Petitioner would be late reporting to work and when Petitioner wanted to use some of the leave time available to her. Additionally, on August 8, 1988, Petitioner received a written reprimand from her supervisor for being absent from work without authorized leave. That written reprimand recited that Petitioner was scheduled to work on July 5, 1988, and that she failed to come to work and failed to call. She was, accordingly, assessed eight hours of leave without pay for that particular day and was advised that a future violation of absence without authorized leave would result in disciplinary action ranging from a 10-day suspension to dismissal. She was further reminded in that written reprimand that she was required to request leave when she was going to take time off from work. On May 3, 1989, Petitioner advised her then supervisor Barbara Butler that she intended to take off some time to visit her sick mother, that she did not know exactly when she would be doing that, and that she did not know how long she would be gone. She told Butler she did not want to use any of her annual leave (vacation) time available to her; instead, she wished to take leave without pay so as to not use her annual leave time for that purpose. Her supervisor again advised her as to the proper procedures and further advised her that if she wished to take leave without pay such a request must be presented in writing in advance to Edward Dixon, the Food Service Director at Landmark. Petitioner understood the instructions given to her by Butler. She advised Butler that she would attempt to finish working the rest of that week but that if she found out that she needed to go even in the middle of the night, she would do so. Petitioner worked May 4 and May 5, 1989. During the time period of May 3 when Butler advised her to follow the proper procedures and informed her, once again, as to what the proper procedures were, through May 5, her last day of work, Petitioner submitted no request for leave to her supervisor and made no request of Dixon for authorized leave without pay. Petitioner was not scheduled to work on May 6 and 7, a Saturday and a Sunday. From Monday, May 8, 1989, through Thursday, May 11, 1989, Petitioner failed to report to work. Petitioner had not requested that she be permitted to take leave from her work assignment, and no authorization had been given to her by anyone to not report for work on those days. Butler advised Dixon that Petitioner had stated that she might be taking time off to visit her mother, and Dixon's subsequent attempt to contact Petitioner to ascertain why she had failed to report to work for four consecutive days was unsuccessful. By certified letter dated May 11, 1989, Dixon and Ulysses Davis, Superintendent at Landmark Learning Center, advised Petitioner that she had not called in or reported to work on May 8 through May 11 and, therefore, she had abandoned her position and was deemed to have resigned from the Career Service. They further advised Petitioner that her resignation would be effective on the date she received the letter or on the date that they received the undelivered letter directed to her. Petitioner received that letter on May 19, 1989. Between May 8, 1989, and May 19, 1989, Petitioner had made no contact with anyone at Landmark Learning Center. By May 19, 1989, Petitioner had been absent without leave for 10 consecutive workdays. On May 19, Petitioner appeared at Landmark Learning Center to pick up her pay check. Although she went to the food service area while she was at Landmark, she did not speak to Butler, Dixon, or anyone else regarding her lengthy unauthorized absence or her failure to request leave in advance of failing to appear for work. Similarly, she failed to speak to anyone in Landmark's personnel office regarding her failure to request leave time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner was absent without authorized leave for three consecutive workdays and is therefore deemed to have abandoned her position and to have resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December, 1989. LINDA M. RIGOT 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 19th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3538 Petitioner's proposed findings of fact contained in her paragraphs numbered 1-3 have been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the evidence in this cause. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Elizabeth Judd-Edwards Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142 Julie Waldman and Caridad Planas, Esquire 401 Northwest 2nd Avenue 5-424 Miami, Florida 33128 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Respondent, Magda R. Cenal (Cenal) has been employed by Petitioner, School Board of Dade County (School Board) as a music teacher for primary grades since 1972. On November 19, 1986, the School Board suspended Cenal from her position, and sought her dismissal for excessive absenteeism for the school years 1975-76 through 1985-86. Cenal contests the School Board's action, and contends that she has a right to job protection under her contract of employment when on approved leave and that all her absences were duly approved. The proof is uncontroverted that during the school years 1975-76 through 1985-86 Cenal was absent from her employment for protracted periods of time, and that such absences impaired her effectiveness in the school system and deprived her pupils of a minimum educational experience. The proof is also uncontroverted that Cenal was repeatedly directed to improve her attendance, but failed to do so. Resolution of this case is, however, dependent on whether Cenal's absences were consistent with the terms of her contract of employment (approved). If consistent, she is entitled to employment protection, and the impact of her absences is not relevant. Article XIV of the contract between the School Board and the United Teachers of Dade, prescribes the leaves of absence available to teachers employed by the School Board, as well as the accrual and use of sick leave. If an employee's absence is in accordance with the provisions of this contract it is deemed approved, and their employment rights are protected. In the instant case Cenal avers that all her absences were approved. The School Board concedes that at no time was Cenal absent without approved leave and, notably, did not contest the propriety of a single absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Magda R. Cenal, be reinstated with back pay, and all other benefits to which she is rightfully entitled. DONE and ENTERED this 25th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4804 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not necessary to result reached. 3-6. Addressed in paragraph 2-4. 7-10. To the extent relevant, addressed in paragraph 2. Mr. Renuart's evaluation of Respondent during the 1978-79 school year and his recommendation that she be dismissed was not acted upon by the School Board. Other than her absence record, there is no competent proof that she suffered any deficiencies noted by Mr. Renuart in subsequent years. 11-17. Addressed in paragraphs 2-4. 18-19. Addressed in paragraph 2. 20-22. Not necessary to result reached. 23-24. Addressed in paragraph 2. 25. Not supported by competent proof. 26-32. Addressed in paragraph 2. 33. Not necessary to result reached. 34-37. To the extent relevant, addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 2. Not necessary to result reached. Also see paragraphs 1-4 of recommended order. Respondent's proposed findings of fact are addressed as follows: To the extent relevant, addressed in paragraph 1. Respondent's absenteeism is addressed in paragraph 2. The interrogatories filed in this case are not, however, probative since they were not introduced into evidence. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 3. Addressed in paragraph 2. Also see the address to petitioner's proposed findings of fact 7-10. COPIES FURNISHED: Johnny Brown, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 William DuFresne, Esquire 2929 Southwest Third Avenue Suite C Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
