The Issue The issue in this case is whether Respondent’s employment should be suspended and terminated for the reasons set forth in the Amended Petition for Involuntary Resignation.
Findings Of Fact Respondent began her employment with Petitioner as a substitute teacher in November of 1997, and was later hired as a regular teacher in January of 2000. Respondent held a temporary teaching certificate which expired after the time period at issue in this case. Respondent was first assigned to teach at Santaluces High School and was later assigned to Bear Lakes Middle School, where she taught geography. On April 12, 2002, Respondent was injured in the line of duty while attempting to assist another teacher control unruly students. In that incident Respondent fell and injured both her back and her knee. Respondent was authorized by Petitioner’s workers’ compensation administrators to treat with both Dr. Wexler and Dr. Lichtblau for her injuries.1 Following the accident on April 12, 2002, Respondent continued to work at Bear Lakes Middle School until on or about November 11, 2002, when she was placed on a light duty assignment at another location. Respondent had been placed on light duty by Dr. Wexler because he felt it was medically necessary. Thereafter, Respondent was given several light-duty assignments to accommodate her physician-imposed work restrictions, including assignments to Conniston Middle School, Risk Management, JFK Middle School, Gold Coast Community, and the District’s substitute office. Respondent was placed on light-duty assignments by the Palm Beach County School Board (School Board) for a total of more than ten months. The light-duty assignments provided by the School Board are temporary assignments that are made available in lieu of workers’ compensation payments to employees who are able to perform light duty. They are not offered for an indefinite period of time, nor are they offered as a permanent employment option. Following some confused communications about Respondent’s certification status and some further confused communications as to whether Respondent had reached maximum medical improvement and could return to a seven-and-a-half hour per day classroom teacher position, Respondent was offered a job teaching full-time (seven-and-a-half hours per day) at Jeaga Middle School. Respondent was supposed to begin teaching at Jeaga Middle School in September of 2003. On September 10, 2003, Dr. Wexler, one of Respondent’s treating physicians wrote that he agreed with another physician’s assessment that Respondent had reached maximum medical improvement and could work eight hours per day with certain restrictions that could be accommodated in a classroom teaching setting. Later that month, Dr. Wexler explained that there had been some confusion on September 10, 2003, and that he was of the view that Respondent had not yet reached maximum medical improvement and that Respondent’s work hours should be restricted to four hours per day. Respondent declined the offer of the full-time teaching position at Jeaga Middle School and requested that the School Board offer further light-duty work assignments of no more than four hours per day. The School Board promptly informed Respondent that she would not be offered any further light-duty assignments and that if she was not going to accept the full- time position at Jeaga Middle School, she should apply for leave without pay in order to avoid being terminated by the School Board. At an earlier time following her April 12, 2002, injury, Respondent was on leave without pay for a period of time. During that period she received workers’ compensation benefits in lieu of wages or salary. During that period of time Respondent was dissatisfied with the workers’ compensation benefits she received. Because of that prior negative experience, Respondent did not want to again request leave without pay, which would require her to rely on workers’ compensation benefits until she reached maximum medical improvement. Respondent did not accept the full-time position at Jeaga Middle School and did not apply for leave without pay. Respondent did not apply for any other regular employment opportunities with the School Board. Respondent did continue to request assignment to a light-duty position for four hours per day. The School Board advised Respondent on several occasions that she would not be assigned to any further light-duty positions and that it would be in her own best interest to apply for leave without pay to avoid termination from the School Board. As a teacher employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Classroom Teachers Association (CTA) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and the CTA (CTA Contract). The subject of unpaid leaves is addressed at page 55 of the CTA Contract, which includes the following language: SECTION C - UNPAID LEAVES: GENERAL PROVISIONS All absences of employees from duty shall be covered by leave applications which are duly authorized, a copy of which shall be provided employees upon request. Except for short-term leaves of absence, and intermittent political leave, unpaid leaves shall be timed such that the employee returns at the beginning of a new grading period. Except for extenuating circumstances, Sick Leave without Pay for Personal Illness or Illness/death of a Family Member, for more than ten (10) days, also shall be timed so that the employee returns at the beginning of a grading period. An employee taking an approved unpaid leave shall retain the same contractual and salary credit status as he/she had upon taking such leave and shall be returned to the same school, and within certification, to the same assignment he/she held prior to taking the leave, if said leave is for a duration of twelve (12) months or less. However, an employee while on an unpaid leave shall be subject to the Excessing Procedure and the Lay-Off/Call-Back Procedure of this Agreement the same as if they were not on leave. If these procedures become operative and affect the employee on leave, he/she may not be returned to the same position he/she held prior to taking leave. Likewise, employees while on an unpaid leave maintain their rights to apply for transfers and/or reassignments as provided by this Agreement. * * * SECTION D - UNPAID LEAVES: SPECIFIC PROVISIONS Short Term Leave of Absence - Any employee desiring short term leave of absence shall make written application for such leave to the Principal or immediate supervisor. Except in emergency situation, such applications shall be approved in advance. Leave for emergencies may be deemed to be granted in advance, if prompt report is made to the proper authority. The first five (5) requested days of short term leave, whether covered by one (1) or more than one (1) request, will be approved. Requests for short term leave thereafter, regardless of length, will be granted or denied by the District in its discretion. Applications for more than five (5) working days will require that a reason be given and shall be subject to approval by the Superintendent. Employees shall not be gainfully employed during normal working hours while on such leave. Long Term Leave of Absence - A long term leave of absence is permission granted by the Board, at the District’s discretion, for an employee to be absent from his/her duties for specified periods of time with the right of returning to duty on expiration of the leave. Leave shall be officially granted in advance by the District and shall be used for the purpose set forth in the leave application. Such long-term unpaid leave, when granted, will be for the remainder of the school year, unless otherwise approved with the initial leave request. In addition, up to one (1) additional year of leave shall be granted upon receipt of a written request from the employee, unless the employee has not been reappointed in keeping with other provisions of the Agreement for the next school year. Such extension of long-term leave shall be timed such that the employee returns at the beginning of a new grading period. Once an employee has exhausted the leave privileges under this subsection (Long-term Leaves), the employee shall be required to return to duty for a full year before being eligible for another long-term unpaid leave. As a School Board employee, Respondent is subject to applicable School Board rules and regulations, including School Board Policy 3.80 and School Board Directive 3.27. School Board Policy 3.80 addresses unpaid leaves when an employee’s sickness has extended beyond all compensable leave. School Board Directive 3.27 addresses the general topic of separation from employment. Under the caption “Suspension/Termination” the directive provides: 3. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes (now § 1012.67, Fla. Stat.). * * * e. Incompetent to perform regular work duties. Incompetency is defined as incapacity to perform due to lack of emotional stability or physical ability; or lack of adequate command of the designated area of work. Employees are also incompetent when they repeatedly fail to perform duties prescribed by law and by this district. [2] Respondent was personally advised on numerous occasions that if she did not apply for a leave of absence, she would be absent without approved leave and would be subject to termination. Respondent was absent without authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 20th day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2005.
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 it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005). The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present. By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing). Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2 Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3 Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the assignment of an ALJ within 15 days of the date Petitioner received the request for hearing. The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part: In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process . . . . Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides: The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures: A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS. 120.68. The Association shall be notified when any Association member is to be terminated. Petitioner's Exhibit 11. Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005). Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20, 2006. The sole issue that Respondent included in the Joint Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent. If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent. Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded 4.5 hours. Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m. The workday included one unpaid meal break for 30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break. Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m. On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy. Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours. The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately 5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space. Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday. The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee. DONE AND ENTERED this 11th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th of December, 2006.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Respondent, Richard P. Rost, was employed by the Board as the principal at Rock Lake Middle School. During the week of October 7 through 11, 1991, the Seminole County School District was to perform an FTE survey in accordance with state-mandated guidelines. The purpose of the survey was to perform a head count of the students enrolled in the public school system and to designate an FTE value according to the type of student. The results of the survey were utilized by the state to appropriately distribute funding among the school districts. Students enrolled in special classes receive a higher weighted FTE than those enrolled in regular classes. Teachers are required to execute rolls and to certify the names of the students enrolled in their classes for each period of the surveyed school day. The pertinent survey date for Rock Lake Middle School (Rock Lake) was October 11, 1991. On that date teachers at Rock Lake filled out FTE forms that listed the students enrolled in their classes for each period of the school day. On the morning of October 11, 1991, Respondent administratively reassigned thirteen students from their regular class assignments to the in- school suspension program at Rock Lake. None of the students so assigned met the criteria for placement into the in-school suspension program. Respondent placed the students into the in-school suspension program so that when the FTE survey was performed, the records would show that thirteen students were enrolled in that section. The FTE weight for a student enrolled in an in-school suspension program is greater than the FTE weight for physical education. Several of the students assigned to the in-school suspension program on October 11, 1991, were pulled from their regular physical education classes. Respondent has admitted that he made the class changes on the survey date but maintains he was authorized to do so since the students would receive an educational benefit from the placement, and since the placement might be considered a resource period for the students. Further, Respondent maintains that Willie Holt, the director of middle school education, had indicated that it was mandatory for Rock Lake to have fifteen students in its tutorial program and thirteen students in the dropout prevention program. In order to be placed in the in-school suspension program, a student must have a referral for misconduct that would normally warrant an out-of-school suspension. Additionally, upon completion of the referral form, the student and his parents must complete an in-school suspension contract acknowledging and accepting the placement. No paperwork was completed for the students administratively assigned by Respondent on October 11, 1991. Because students were erroneously placed in the in-school suspension program, they were surveyed based upon the FTE weighted rate of 1.707. Accordingly, unless caught by the state through an audit, or voluntarily disclosed through an amended FTE report, Seminole County Schools would receive a higher level of funding than it was entitled. While Respondent could not personally gain from the FTE report and increased funding, his actions placed the Board in a position of liability for the improper survey results. More critical to this case, however, is the fact that Respondent has never conceded that he made a mistake in placing the students in the in-school suspension program. Respondent directed his staff to respond to the inquiries about the placements even though he knew, or should have known, that the students placed in the in-school suspension program did not meet the criteria for same. Specifically, Ms. Schalls, the guidance director, wrote a letter explaining the assignments for Respondent's signature as a result of the inquiries related to the placements. Because Respondent directed him to accept the students into the class, Mr. Deyling, the in-school suspension teacher, incorrectly completed the FTE forms on the survey date. Because Respondent directed her to pull students from classes to send them to the in-school suspension class, Ms. Shalls, the guidance department director, executed passes for the thirteen students. To her credit, when questioned regarding the appropriate paperwork to support the assignment, Ms. Shalls would not complete the forms. The guidance staff had never, prior to this incident, placed students in the in-school suspension class. Respondent did not direct any school personnel to falsify school records. There was no drop out prevention program in effect at Rock Lake on October 11, 1991, which would have allowed Respondent to administratively assign the students to in-school suspension. The Respondent disregarded the rights of students by placing them in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent failed to exercise good judgment in placing the students in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent's effectiveness has been seriously impaired by the acts described above. Such acts constitute misconduct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Seminole County, Florida enter a final order finding the Respondent guilty of misconduct in office and terminating his employment as a principal at Rock Lake. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. APPENDIX TO CASE NO. 92-1353 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 10, 12 through 17, 20, 22, 23, 25, 27, 28, 30 through 33, 35, 40, 41, and 44 are accepted. Paragraph 11 is accepted but is irrelevant. Paragraph 18 is rejected as contrary to the weight of the evidence. The first sentence of paragraph 19 is accepted; the remainder is rejected as contrary to the record. Rost maintained he had the authority to make the placements complained of; in truth, he knew or should have known such placements were inappropriate. Paragraph 21 is rejected as argument. Paragraph 24 is rejected as irrelevant. Paragraph 26 is rejected as hearsay or irrelevant. Paragraph 29 is rejected as argument. With regard to paragraphs 34, 36, and 37, it is accepted that Respondent placed the students in the program inappropriately; otherwise rejected as repetitive, unnecessary or irrelevant. Paragraphs 38 and 39 are rejected as contrary to the weight of the evidence. Respondent requested that an explanation be drafted, he did not request any employee to falsify records or misrepresent what had occurred. Paragraphs 42 and 43 are rejected as contrary to the weight of the- evidence in that Respondent did not direct employees to violate the law. He directed the guidance team to choose students who might benefit from the decisions film to be placed in the class. That such action constituted error is based upon Respondent's indifference to the criteria for in school suspension and his goal of achieving a number in that program for FTE purposes. With the addition of the phrase "or should have known" after the word "knew" paragraph 45 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1, 24, 25, 41, 70, 71, 74, and 80 are accepted. Paragraphs 2 through 10 are rejected as argument, contrary to the weight of credible evidence, or irrelevant. With regard to paragraph 11, it is accepted that Respondent would not financially gain personally from the FTE survey; however, that he would seek to file a false survey suggests that he perceived some benefit from doing so. Otherwise, when questioned initially about the matter he would have confessed error and acted to correct the problem. Paragraphs 12 and 13 are rejected as contrary to the weight of the credible evidence except as to the statement that Mr. Evans was absent on the survey date. Paragraph 14 is rejected as recitation of testimony not accepted as an ultimate fact of this case. Paragraphs 15 through 18 are rejected as contrary to the weight of the evidence. Paragraphs 19 through 23 are accepted only to the extent that they suggest Respondent did not direct employees to after-the-fact fabricate records to justify the placement of the students; otherwise, rejected as recitation of testimony, irrelevant, argument or contrary to the weight of the credible evidence. Paragraphs 26 through 38 are rejected as irrelevant, contrary to the weight of credible evidence, repetitive, or argument. The first sentence of paragraph 39 is accepted; otherwise rejected as irrelevant or recitation of testimony. Paragraphs 42 through 69 are rejected as irrelevant, recitation of testimony not accepted as ultimate fact, contrary to the weight of credible evidence, argument, or unnecessary to the resolution of the issues of this case. Respondent had, prior to the incident complained of, enjoyed a good reputation in the school community and Rock Lake had had no major problems. Had Respondent acted differently in this instance, these proceedings would not have been required as his judgment would not have been made suspect. Paragraphs 72 and 73 are rejected as contrary to the weight of credible evidence. Paragraphs 75 through 79 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 81 through 90 are rejected as contrary to the weight of the credible evidence or argument. COPIES FURNISHED TO: Ned N. Julian, Jr. STENSTROM, McINTOSH, JULIAN, COLBERT, WHIGHAM & SIMMONS, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Joseph A. Rosier P.O. Box 95017 Lake Mary, Florida 32795 Dr. Paul Hagerty Superintendent of Schools Seminole County School Board 1211 Mellonville Avenue Sanford, Florida 32771
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
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 Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a paraprofessional, non-instructional employee at all times relevant to these proceedings. Respondent School Board is the body politic responsible for the administration of public schools within the Suwannee County School District. Petitioner was a member of the non-instructional chapter of the United Teachers of Suwannee County, Florida, and was subject to the terms and conditions of the collective bargaining agreement between that organization and Respondent. Additionally, Petitioner’s employment was subject to the terms and conditions set forth in the Continuing Contract of Employment Non-Instructional Education Support Employees of the Public Schools executed between Petitioner and Respondent. Petitioner worked at the Suwannee Primary School in Live Oak, Florida. Petitioner’s work schedule required him to work Monday through Friday of each work week. Petitioner’s duty day started at 7:30 a.m. and ended at 2:40 p.m. Marilyn K. Jones, the principal of the Primary School, was Petitioner’s immediate supervisor. Although their surnames are the same, Principal Jones and Petitioner are not related. Petitioner approached Jones on February 14, 2005, and spoke with her regarding his recent employment with a state prison. Petitioner informed Jones that he had been hired as a corrections officer and that he was required to attend orientation and training sessions. Petitioner informed Jones that the initial orientation and training sessions were held during times he was required to work at the Primary School. Petitioner asked for a couple days off from his work at the Primary School to attend these initial sessions. Petitioner was hopeful that once the training and orientation sessions were completed, his work hours with the state prison would be from 4:00 p.m. to 11:00 p.m. and would not interfere with his employment with Respondent. Jones informed the Petitioner that he could use personal leave time that he had accumulated to attend the orientation and training sessions. Jones requested that Petitioner keep her posted regarding the days he would be absent and directed him to complete and submit the forms required to take leave prior to the actual absences so that arrangements could be made for substitute personnel to assume Petitioner's duties. Petitioner did not, however, submit the proper leave forms and the training period at the prison was longer than the originally expected. Additionally, after discussions with the payroll Department, Jones learned that the Petitioner did not have enough accumulated leave time to allow for his previous absences. Jones and the Petitioner had a telephone conversation on March 5, 2005. Jones informed Petitioner that he had been absent more times than their initial understanding, that he had failed to submit the leave forms in advance of the days he would be absent, and that he did not have leave time available. Petitioner apologized for the additional time that he had been absent and again noted that he thought that after the first few days of training, his work at hours at the prison would be from 4:00 p.m. to 11:00 p.m. Jones told Petitioner that his continued absences would be unauthorized and that she did not want him to be fired for taking unauthorized leave. Jones informed the Petitioner that if he wished to resign, he could submit his resignation to her. On March 7, 2005, Petitioner met with Jones and her assistant principal Betty Ann Sumner, along with Sheryl Daniels, the president of the Teacher’s Union, to discuss Petitioner’s absences. Petitioner expressed his desire to work three days a week at the Suwannee Primary School and the other two days at his job with the prison. Jones reiterated her previous statements to Petitioner that she was concerned for him and did not want the School Board to terminate his employment based on his absenteeism. Jones informed Petitioner that he had taken days off from work without providing any advance notice and advised that in the event of future absences, Petitioner must submit the appropriate forms in advance. When Petitioner raised the subject of a leave of absence until the fall semester so that he could schedule his employment with the prison and Respondent to avoid time conflicts, he was referred to Respondent's district office. Subsequently, Petitioner requested a 10 week leave of absence with the Superintendent of the Suwannee County School District, J. Walter Boatright, to continue to pursue training as a corrections officer. Under School Board policy, an absence in excess of five days has to be approved by the School Board. Boatright declined to bring Petitioner’s request for leave to the Suwannee County School Board based on his view that the Board’s policies did not allow an employee an extended leave of absence to receive training for an unrelated second job, that the end of the school year was approaching, and that the School District needed the presence of all of its employees. As established by Boatright's testimony, Respondent often has difficulty finding substitute personnel when its employees are absent for wholly legitimate reasons. Boatright informed Petitioner that he would not recommend that the School Board approve Petitioner’s request and would not bring Petitioner’s request to the School Board for its consideration. Additionally, Boatright recommended that the School Board deny Petitioner’s request for leave for the days that he had already been absent. Petitioner never personally appeared before the School Board to submit his request for personal leave. After Boatright's decision was communicated to him, Petitioner was again absent without leave on several occasions. Petitioner met with Boatright on March 24, 2005. At that meeting, Boatright warned Petitioner that he faced disciplinary action, including termination from employment if he continued to be absent from his non-instructional position without leave. In response to Boatright’s warnings, Petitioner said, “Anybody can do what I do” and suggested that Boatright simply obtain a substitute teacher to fill his position. Following Petitioner's remarks, Boatright informed Petitioner that his role with the Suwannee County School District as a paraprofessional, non-instructional employee was important. Sheryl Daniels, the president of the United Teachers of Suwannee County was also present at the meeting on March 24, 2005, with Boatright and Petitioner. Daniels asked Boatright to reconsider Petitioner’s request for leave because Petitioner had been a good employee in the past and this should merit some additional consideration. Boatright, however, denied Petitioner’s request for leave. Later, Petitioner received a letter dated April 20, 2005, from Boatright, confirming and reiterating the warning delivered to Petitioner during the March 24, 2005. In this letter, Boatright, advised Petitioner “that any further absence without leave on your part after the receipt of this letter will result in my recommendation to the Suwannee County School Board for your termination.” Subsequent to Petitioner’s receipt of the April 20, 2005, letter from Superintendent Boatright, Petitioner was again absent without leave in late April and in May of 2005. On April 28, 2005, Petitioner received his annual employment evaluation. The evaluation was performed by Jones, his principal. An employee’s overall evaluation rating is determined by adding the employees’ scores in seven different categories. Although Petitioner received an overall rating of “Effective,” Petitioner’s rating with respect to his professional responsibilities was “Needs Improvement.” Jones’ evaluation noted that although Petitioner did a good job in the computer lab, his frequent absences were a concern and that student behavior had deteriorated in Petitioner’s classes when he was absent. On April 28, 2005, Boatright filed a petition with the School Board to terminate Petitioner’s employment. A hearing was scheduled for May 15, 2005. The School Board rescheduled the May 15, 2005, hearing, however, when Petitioner requested additional time to prepare for the hearing. Thereafter, Petitioner was served with an Amended Petition for Termination of Employment filed by Boatright. The Superintendent’s Petition for Termination of Employment charged Petitioner with violating Suwannee County School Board Policy Section 6.22, which states, “[a]ny employee of the District who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and the employee contract shall be subject to cancellation by the School Board.” By letter dated May 31, 2005, Petitioner submitted a letter of resignation to Respondent. In that letter, Petitioner wrote that he was submitting his resignation due to the denial of his request for an unpaid leave of absence and the need to avoid further damage to his reputation. Petitioner also stated in the letter that he thought he had been the subject of discrimination and was left with no alternative but to resign his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 5th day of July, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 5th day of July, 2006. COPIES FURNISHED: Mike Jones Post Office Box 372 Live Oak, Florida 32064 Andrew J. Decker, IV, Esquire Andrew J. Decker, III, Esquire Post Office Box 1288 Live Oak, Florida 32064 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 February, 2005.
