The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
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 in Miami-Dade County. Respondent is employed by the School Board as a school bus aide. She is currently assigned to the John Schee Transportation Center. Respondent was initially hired by the School Board on September 8, 1992. She was terminated, effective October 31, 1995, for having been absent without authorization for three consecutive days. The School Board rehired Respondent on May 3, 2000, and assigned her to the Northwest Transportation Center. On October 11, 2002, Respondent was given her current assignment at the John Schee Transportation Center. As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . * * * Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1 of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal.[2] A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.[3] The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract[,] the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4 of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Chief Personnel Officer for Human Resources a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence.[4] Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s], regulation[s], and [p]olic[ies]. If she does not, she may be disciplined pursuant to the AFSCME Contract.5 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. * * * School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board bus drivers and aides are governed by the following "[a]ttendance [p]olicy" set forth in the School Board Transportation Department's Handbook for Drivers, Aides and Operations Staff: Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. Additionally, any employee who does not have available sick/personal time may be charged with an unauthorized absence. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. During the time she has been assigned to the John Schee Regional Transportation Center, Respondent has had a history of poor attendance, which has adversely impacted the operations of the center. On February 21, 2003, Respondent was issued a verbal warning for an unauthorized absence. On March 20, 2003, Respondent was issued the following written warning regarding her attendance by Dr. Michael Exelbert, a Coordinator III at the John Schee Regional Transportation Center: Payroll records indicate that you have accrued 7 days of Unauthorized Leave Without Pay and/or Tardies. Records indicate you were verbally warned regarding this issue on Feb. 21, 2003. Article V, Section 27 of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Unauthorized Absence - Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI." Article XI, Section 4B of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Excessive Absenteeism/Abandonment of Position - An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence." Section 9 of the M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff addresses the department's Attendance Policy. It states: " Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract." This section addresses: 9.1-Authorized Absences, 9.2-Unauthorized Absences, 9.3- Notification of Absences, and 9.4-Check-In Policy. You are instructed to review this section of your handbook. Deficient performance exhibited by the accrual of unauthorized absences and/or tardiness negatively impacts the department, coworkers and the educational program of the students we serve. This behavior is unacceptable and must be corrected by reporting to duty when scheduled and reporting on time. With this memorandum, you are warned that future occurrences of Unauthorized Absences and/or Tardies will lead to progressive disciplinary action compliant with District policies and procedures and the contract between M-DCPS and AFSCME Local 1184. Be advised M-DCPS has a District Support Agency that may be able to assist you regarding attendance deficiencies and can be reached at . . . . You are encouraged to contact them for assistance in regards to your attendance deficiencies. Please contact me if additional information is required. Respondent signed this written warning, acknowledging receipt thereof, on March 26, 2003. On October 23, 2003, Mr. Exelbert held a conference- for-the-record with Respondent to discuss "attendance requirements." The following day, Mr. Exelbert prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-For-The-Record was held in my office on Thursday, October 23, 2003. You were asked if you were a member of the Union. You indicated that you were, but did not seek representation. Present at the meeting was Cynthia Brown, Bus Attendant, and this administrator. You were told the purpose of today's conference was to review attendance requirements. You were given a copy of the Notification of this Conference-For-The-Record. You acknowledged receiving and signing receipt for today's Conference-For-The-Record. You also received: a copy of all LWOP-U absences since your written warning and a copy of your M-DCPS screen 026 leave status dates. You received a Verbal Warning about your LWOP-U absences on February 21, 2003, and a written warning about you[r] LWOP-U absences on March 20, 2003. During those meeting the following LWOP-U absences were discussed. November 22(D), 2002. December 05(A), 06(D), 09(D), 10(D), 11(D), 20(P), 2002. February 04(P), 06(A), 11(A), 13(A), 14(P), 20(D), 24(D), 25(A), 2003. March 06(A), 10(D), 11(D), 12(D), 13(D), 2003. For today, the following LWOP-U attendance days since the Written Warning on March 20, 2003 were discussed: March 27(A), 2003. April 11(D), 17(A), 21(A), 23(D), 24(D), 2003. May 09, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003 (ALL Days). June 02, 03, 04, 05, 2003 (ALL Days). August 26(A), 29(A), 2003. September 04(A), 05(A), 11(A), 2003. A total of fifty occurrence of LWOP-U The seriousness of missing work and good attendance was discussed. You were given copies of Section 9 (Attendance Policy) from the Handbook of School Bus Drivers, Aides and Operations Staff. You indicated that you would bring documentation to change the unexcused absences of: April 11, 17, 21, 23, 24, 2003, May 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003, June 02, 03, 04, 05, 2003, (due to medical problems that you experienced at those times), and that you could bring in other documentation for: August 26, 29, 2003 and September 04, 05, 11, 2003, as a result of domestic problems you experienced at those time, from unacceptable to LWOP-A. You were asked if you had any other comments. You indicated that by Friday, October 31, 2003, you would bring in additional documentation for other dates listed above. You were told that this case would now be sent to Mr. George C. Millar, Director of the John Schee Regional Transportation Center and possibly to the Office of Jerry Klein, District Director, Department of Transportation Administration for further review. You were told that a summary would be prepared of today's session. You were apprised of your right to append, to clarify, or to explain any information recorded in this conference, by this Summary. You were asked to review this summary on Monday October 27, 2003, after 8:30AM, in Gail Allen, the Executive Secretary's Office. Respondent signed this memorandum, acknowledging receipt thereof, on October 29, 2003. Mr. Exelbert referred Respondent to the School Board's Employee Assistance Program for help in dealing with problems affecting her attendance. George Millar, the Director of the John Schee Regional Transportation Center, held a conference-for-the-record with Respondent on February 13, 2004. On February 17, 2004, Mr. Millar prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: * * * CONFERENCE DATA It was stated that over the previous 12- month period, excluding summer, you have accrued 35.5 days of unauthorized absences. It was noted that several days previously unauthorized had been changed to authorized with a current net total of 35.5 days . . . . It was noted that the 35th day does not show on the report because the pay period just closed. A review of the record showed the following incidences attempting to assist you improve your attendance: Verbal Warning - February 21, 2003 Written Warning - March 20, 2003 . . . Conference for the Record - October 23, 2003 . . . . District Support Agency Referral - October 23, 2003 . . . . You were asked to present any additional documentation or response to address the issues presented. You stated that you were ill at the end of last year and you brought documentation. During a portion of that time you were hospitalized. You were instructed to submit documentation and it would be reviewed and considered for changing the identified absences to authorized. Your AFSCME Representatives were asked if they had any comment, Mr. Houghtaling said no. Action Taken The following section of the contract between Miami-Dade County Public Schools and AFSCME Local 1184 and Department of Transportation Handbook were reviewed and you acknowledged understanding their meaning and intent Article V, Section 27 . . . . Article XI, Section 4, Paragraph B . . . . Section 9 Attendance - M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff . . . . The following instructions were given at the conference: Report for duty each day and shift that you are scheduled to work. Call in or submit a leave card in advance of your reporting time when you intend to be absent. Present documentation for absences not covered by accrued leave time to this administrator or Dr. Michael Exelbert upon your return to duty. Conclusion You were instructed that this conference would be summarized and forwarded to the Administrative Director, Department of Transportation, and the Office of Professional Standards for review and subsequent disciplinary action as merited. You were informed of your right to appendage (provide a written statement), which will be attached to the conference summary if you feel any facts or information is misrepresented or statements omitted which occurred during the conference. You will have 24 hours from receipt of the conference summary to submit this appendage. These statements concluded the conference. Respondent signed this memorandum, acknowledging receipt thereof, on February 24, 2004. Barbara Moss, the School Board's Office of Professional Standards' District Director, held a conference- for-the-record with Respondent on March 16, 2004, to discuss Respondent's absenteeism and her "future employment status" with the School board. In the 12-month period prior to this conference, Respondent had been absent a total of 72 days and had 33.5 days of unauthorized absences. On March 24, 2004, Ms. Moss prepared and furnished Respondent a memorandum in which Ms. Moss summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Ms. Moss wrote the following: Action Taken You were advised of the availability of services from the District's support referral agency. The following directives are herein delineated which were issued to you during the conference concerning future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. George Millar or designee. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Millar or designee upon your return to the site. Failure to comply will result in the absence being recorded as Leave Without Pay, Unauthorized (LWOU). During the conference, you were directed to comply and provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves. You are advised of the high esteem in which employees are held and of the District's concern for any behavior, which adversely affects this level of professionalism. Action TO Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of District Compliance Units, the Administrative Director of Transportation, and the Director of [the] John Schee Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review with endorsement by the Chief Communications Officer, will compel formal notification of the recommended disciplinary action. All disciplinary actions will be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and respond to any information recorded in this conference by this summary, and to have any such response appended to your record. At its June 16, 2004, meeting, the School Board "took action to suspend [Respondent] and initiate dismissal proceedings against [her]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board pursuant Article XI, Section 4B, of the AFSCME Contract. DONE AND ENTERED this 22nd day of March, 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 22nd day of March, 2005.
The Issue The issue is whether, in violation of Section 231.36(1)(a) and (6), Florida Statutes, Respondent committed misconduct in office when he pawned a school laptop computer and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 33 years old. His father has served Petitioner as a principal, and his mother has served Petitioner as a primary specialist; combined, Respondent's parents have 64 years' service in Petitioner's school system. Respondent attended high school locally, where he achieved prominence as a football player, and continued his football career in college. Petitioner hired Respondent in an instructional position on July 1, 1992, shortly after he obtained his bachelor's degree. Respondent began work as a pool substitute. At the time, he was also pursuing a master's degree in guidance. When a guidance job became available, Petitioner hired Respondent as a guidance counselor. After four years as a guidance counselor, Respondent became an assistant principal in March 2001 at a middle school. Three assistant principals help the principal at this middle school. Respondent's duties include supervision of discipline, safety, and maintenance of the school. On July 19, 2001, Respondent's principal assigned to Respondent an Apple G-4 Titanium laptop computer. Respondent understood that he was to use the computer for school-related job duties, such as staff development and classroom use. On August 25, 2001, Respondent took the computer to Richie's Pawn Shop in Tamarac to pawn the computer. Respondent disclosed to the pawn shop owner that the computer was owned by Petitioner, not Respondent. However, the pawn shop owner, who had known Respondent nearly 20 years earlier, when he had purchased items from the shop, nevertheless allowed Respondent to pawn the computer. Respondent signed a document that represented that he owned the computer. Pursuant to the agreement, the pawn shop owner gave Respondent $350. The agreement provided that Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $52.50. According to the agreement, at the conclusion of the first 30 days, Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $105. After 60 days, Respondent would lose the right to redeem the computer. Respondent used the money for expenses on a trip that he was taking that weekend to retrieve his four-year-old daughter, who was visiting Respondent's parents in Ocala. The following Monday, August 27, Respondent was back at work as an assistant principal. Respondent did not return to the pawn shop to redeem the computer for a little over two weeks. On September 12, Respondent returned to the pawn shop and attempted to redeem the computer. The prior day, though, a Broward County Sheriff's Officer, on a routine check of the pawn shop, had run the registration number of the computer that Respondent had pawned and learned that it was the property of Petitioner. The officer had informed one of Petitioner's investigators of the presence of the computer in the pawn shop. One of the law enforcement officers then ordered the pawn shop owner to hold the computer and not allow anyone to remove it. Pursuant to the order that he had received, the pawn shop owner informed one of Petitioner's investigators when Respondent tried to redeem the computer. Contrary to the allegation of the Administrative Complaint, Respondent went to the pawn shop to redeem the computer not knowing that Petitioner or law enforcement had discovered the wrongful pawning. Petitioner recovered the computer, undamaged. Petitioner's investigator correctly concluded that Respondent had not attempted or intended to deprive Petitioner of the computer permanently. He also correctly concluded that Respondent had not intended to deprive Petitioner permanently of the computer. Among the witnesses attesting to Respondent's value as an employee of Petitioner was Petitioner's Executive Director of Professional Standards and Special Investigation Unit. The Executive Director has served Petitioner for 28 years, including four years as a principal. While a principal, the Executive Director hired Respondent and found him a valuable employee. When the Professional Standards Committee recommended termination of Respondent, the Executive Director suggested to the Superintendent that he recommend a ten-day suspension and three-year demotion, which the Superintendent adopted as his recommendation to the School Board. Other witnesses with considerable knowledge of Petitioner testified to his enthusiasm, talent, energy, and competence as an employee of Petitioner. In particular, Respondent's principal, who has served Petitioner for 33 years, testified that Respondent showed considerable initiative and exceeded all expectations. Although unaware of the reason for Respondent's absence, the students and parents all missed Respondent. The principal testified that even the teachers were unaware of the reason for Respondent's absence. Describing Respondent as a "tremendous asset" to the school system, the principal testified that the incident did not diminish Respondent's effectiveness as an employee of Petitioner. The temporary loss of possession of the computer did not prevent Respondent from completing any of his work assignments, nor did it deprive anyone else from the use of a computer, as the school has dozens of extra computers. Respondent has not previously received discipline as an employee of Petitioner. Petitioner's Employee Disciplinary Guidelines provides in part: DISCIPLINARY GUIDELINES It is the intent of the School Board to treat all employees on a fair and equitable basis in the administration of disciplinary measures. Discipline is a corrective rather than a punitive measure. In dealing with deficiencies in employee work performance or conduct, progressive discipline shall be administered, except in situations where immediate steps must be taken to ensure student/staff safety. Progressive discipline may include, but is not limited to: informal discussion, oral warning, written warning, written reprimand, enrollment in professional skills enhancement programs, suspension without pay, demotion, change in contract status or termination of employment. There are certain categories of misconduct, however, which are so offensive as to render an employee no longer employable. The only appropriate disciplinary measure in these cases (See Section II, Category A) is the termination of the employment relationship with the Broward County School System (F.S., 231.28) The severity of the misconduct in each case, together with relevant circumstances (III (c)), will determine what step in the range of progressive discipline is followed. A more severe discipline measure will be used when it is in the best interest of the students of the community we serve. It is the intent that employees who have similar deficiencies in work performance or misconduct, will be treated similarly and compliant with the principle of just cause. * * * DISCIPLINARY ACTION (CATEGORY A) OFFENSE PENALTY Inappropriate sexual Dismissal conduct including, but not limited to, sexual battery, possession or sale of pornography involving minors, sexual relations with a student or the attempt thereof Sale/distribution of a Dismissal controlled substance Reckless display, Dismissal threatening with guns or weapons on School Board property or at School Board events (CATEGORY B) OFFENSE PENALTY (a) Committing a Suspension/Dismissal criminal act--felony * * * Unlawful possession, Suspension/Dismissal use or being under the influence of a controlled substance Driving Under the Suspension/Dismissal Influence under the scope of employment * * * (i) Possession of guns or Reprimand/Dismissal weapons on School Board property * * * (m) Any violation of The Reprimand/Dismissal Code of Ethics of the Education Profession in the State of Florida--State Board of Education, Administrative Rule 6B-1.001 * * * Misappropriation of Suspension/Dismissal Funds Insubordination, Reprimand/Dismissal which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature and given by and with proper authority Unauthorized use of Reprimand/Dismissal School Board property * * * Section III of the Employee Disciplinary Guidelines reserves to the Superintendent and School Board considerable discretion in imposing discipline, including termination, for any just cause. This section identifies a wide range of aggravating or mitigating factors, including the severity of the offense, degree of student involvement, impact on the school and community, number of repetitions of the offense, length of time since the misconduct, employment history, actual damage, deterrent effect of discipline, actual knowledge of the employee about the misconduct, related misconduct by the employee, pecuniary benefit by the employee, mental or physical harm to persons in school or community, length of employment, employee's evaluation, and employee's adherence to self-reporting policy. Although the actions of Respondent in this case may also constitute misuse of institutional privileges, they are best defined as misconduct in office. The record fails to establish that these actions rise to the level of immorality. The unlawful pawning of a school computer reduces an employee's effectiveness as an employee of the school system, even if, as here, few administrators, teachers, students, or parents know of the misconduct. Unlawfully pawning a school computer is a betrayal of trust that, once detected, is necessarily known by at least some superiors of Respondent, and their knowledge of this misconduct reduces the trust they can place in Respondent and must be able to place in each employee, especially administrators. Numerous mitigating factors apply in this case. The offense is not especially severe, especially given Respondent's intent to redeem the computer prior to the maturity date of the pawn. Nothing in the record suggests that Respondent or any other of Petitioner's employees was prevented or impeded from performing his or her duties due to the pawning of the computer for less than three weeks. The incident does not involve students. It is an isolated incident, and Respondent has not previously been the subject of discipline during his ten-year tenure with Petitioner. Respondent has been an outstanding employee. Another mitigating factor is Respondent's relative youth. Obviously, aggravating factors are that the incident involves pecuniary gain on Respondent's part, although a relatively modest amount, and Respondent did not self-report. Another aggravating factor is the deterrent effect of discipline in this case. Petitioner is justifiably concerned with safeguarding its computers. Obviously, the most applicable provision from the disciplinary guidelines is unauthorized use of school property, for which the penalty ranges from reprimand to dismissal. In some respects, the pawning of the computer is a minor instance of the unauthorized use of school property because Respondent was without the computer for less than three weeks, did not need the computer during that time to perform his school work, did not consume the property or shorten its useful life during its unauthorized use, and never intended to permanently deprive Petitioner of the computer. Also, others at his school did not go without computers while Respondent's computer was in the pawn shop. In one respect, the pawning of the computer is a serious instance of the unauthorized use of school property because it is an expensive asset of the school. The disciplinary guidelines also require the imposition of progressive discipline. The range for the unauthorized use of school property is reprimand to dismissal. Petitioner has imposed demotion and suspension, which more closely approach dismissal than reprimand. Petitioner's selection of discipline in this case is driven mostly by a desire to achieve deterrence and fairness. Petitioner must discourage its many employees from pawning school computers and other expensive, portable electronic equipment, even in situations, as here, where they do not intend to deprive Petitioner permanently of the asset. Deterrence is a listed aggravating factor, and, given the potential for a problem with this kind of behavior, deterrence is the most important aggravating factor. The fairness issue is more problematic for Petitioner. Petitioner is commendably trying to treat Respondent as it has treated two other, nonadministrative employees who were caught misusing computers. In one case, an employee broke into a secure area, stole a computer, and pawned it. In the other case, an employee with authorized possession of a computer pawned it, possibly with the intent of permanently depriving Petitioner of its property. Otherwise, the facts concerning aggravating and mitigating factors in these two cases are not developed in this record. The three cases are the same in that employees pawned school computers, but, based on this record, the resemblances end there. Respondent is a relatively young person, who admittedly exercised poor judgment, but his employment record with Petitioner has been outstanding and this misconduct constitutes an isolated incident. An important part of this case is the testimony of experienced, mature coworkers and superiors, who are informed about the incident and have known Respondent for many years. Supporting Respondent in his effort at least to reduce the punishment, these employees provide a balanced view of the competing factors in finding the appropriate discipline. They weigh the importance of deterring employees from misusing expensive school equipment against the importance of, as provided by Petitioner's disciplinary guidelines, treating discipline not as punitive, but as corrective--in recognition of the fallibility of the human element and its preeminence among Petitioner's assets. The Administrative Complaint seeks a 10-day suspension and demotion under one factual misunderstanding--that Respondent did not redeem the computer until after he knew that Petitioner had uncovered the misconduct. Under all of the circumstances, including Petitioner's use of progressive, corrective discipline, the most serious discipline authorized by the disciplinary guidelines is a 10-day suspension without pay.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order finding Respondent guilty of misconduct in office and imposing a ten-day suspension without pay. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez, Esquire Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 David T. Alvarez, Esquire Alvarez & Martinez, L.L.P. One East Broward Boulevard, Suite 604 Fort Lauderdale, Florida 33301
The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue 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 Whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times pertinent to this case, Nairn was employed by the School Board as a Materials Acquisition Transportation Specialist, more commonly known as a truck driver. The job is an important one in a large, urban school district such as Miami-Dade County. While truck drivers do not directly participate in the education of the tens of thousands of students served by the school district, they play an essential role in supporting and maintaining a physical environment in which learning can safely and comfortably take place. Each day, Nairn and his colleagues drive district-owned trucks throughout Miami-Dade County to pick up essential supplies from vendors and warehouses, and deliver them to the appropriate schools and School Board offices. Any driving is inherently dangerous, and commercial trucks are sufficiently different from regular automobiles that the state requires drivers to hold a special trucking license, which Nairn does. Nairn and his colleagues are supervised by staff whose job it is to see that drivers fulfill their pick-up and delivery responsibilities in a safe and efficient manner. Toward that end, drivers are properly required to stay in close communication with their supervisors, to follow prescribed routes, and to conduct themselves with civility in their dealings with co-workers and members of the public whom they encounter in the course of the work day. Because of the high degree of independence and responsibility accorded to Petitioner's truck drivers, who spend most of their day on the road and out of the sight of their supervisors, they are reasonably expected to exhibit mature behavior and to be able to follow rules without constant reminders. The tasks assigned to drivers change from day to day and sometimes hour to hour, and thus the job requires extensive contact with supervisors. Drivers also must work cooperatively with school board employees and members of the public with whom the School Board does business to effect efficient pick-ups and deliveries. For all of these reasons, drivers are expected to have at least average communication skills, and to use them appropriately. Nairn reported to Heidi Carlo (Carlo) and Joseph Spear (Spear), among others. Nairn and other truck drivers are provided by Carlo with training regarding work site procedures and policies. Individual training is provided by Carlo when an employee is hired, and thereafter group training is provided on an annual basis. Drivers also receive a handbook setting forth procedures and policies applicable to them. Supervisors are available at all times to address questions or concerns any of the truck drivers may have about a particular assignment, policy, or personal or professional problem encountered on or off the job. Another means of resolving issues which affect job performance is offered in the form of an employee assistance program (EAP), which may be accessed by employees upon a self- referral, or an employer referral. Prior to October 1994, Nairn worked for the School Board as a custodian. In October 1994 he began work as a truck driver, and for the first seven months of that employment, there are no documented disciplinary incidents. There is no evidence that Nairn is unable to understand his job requirements. The evidence and testimony offered at the final hearing, coupled with the undersigned's careful observations of Nairn as he testified, and as he interacted with various hearing participants during the course of the two day hearing, demonstrate that he is articulate and well able to communicate effectively and to conduct himself in a gentlemanly manner. At the final hearing, Nairn testified to his side of the story with regard to some, but not all, of the disciplinary incidents documented in his file. Nairn’s testimony was self- serving, uncorroborated, and unpersuasive. In general, Nairn portrays himself as a victim of poor management. He claims that over the years he was unfairly disciplined by capricious supervisors who constantly changed their instructions. This testimony is not consistent with any other evidence in the record. In addition, Nairn did not attempt to deny or explain the most serious charges, the three occasions on which he used his School Board truck for unauthorized purposes. Nairn's first documented encounter with the School Board's disciplinary machinery occurred on May 24, 1995, at which time he received a written warning for failure to follow procedures and destruction of private property. On September 1, 1995, Nairn received a second written reprimand. The subject of the reprimand related to what would become a source of continuing friction between Nairn and his supervisors and co-workers: Nairn's unwillingness to reliably submit himself to the requirement that drivers stay in close communication with their supervisors, and, more specifically, that drivers contact their dispatcher upon arriving and departing each site; schedule lunch in accordance with School Board policies; and respond promptly to pages. On November 18, 1996, Nairn received a verbal warning for having used his School Board-owned truck to go to his residence for two hours during a workday without authorization. On other occasions, Nairn ignored directives by his supervisors to lock School Board-owned vehicles. Nairn was frequently insubordinate toward supervisors, in ways others than the ones noted above. He often demonstrated that he held co-workers in low esteem by abruptly hanging up the telephone during conversations with them. Some, but not all, of this behavior was documented in an October 29, 1997, memorandum to Nairn. By the time of his termination, Nairn had been the subject of at least five formal disciplinary conferences. On March 27, 2000, Nairn again engaged in unauthorized use of his School Board vehicle by taking his truck to Broward County for personal business without permission. When the truck broke down in Broward County, Carlo had to arrange for the it to be towed back to the work site. Nairn exacerbated the seriousness of this breach of trust by using his School Board toll card to pay his tolls for this unauthorized use of time and equipment. Three months after this incident, on June 20, 2000, Respondent once again used a School Board vehicle for personal and unauthorized purposes. The School Board went well beyond what was required of it in allowing Nairn to continue his employment, notwithstanding his inability or unwillingness to follow reasonable rules. In addition to allowing him to keep his job following a number of incidents which, standing alone, would have warranted termination, on November 30, 1999, and April 26, 2000, Carlo referred Nairn to the School Board’s EAP. The EAP offers many kinds of professional services geared to providing confidential assistance for persons who have problems with, for example, submitting to authority; following rules with which they disagree; or getting along with people they dislike. Nairn declined to participate, which is his right, but Carlo's patience was justifiably wearing thin as the disciplinary incidents continued at an accelerating pace. On February 16, 2001, Nairn's 18-year-old son was in a car accident which triggered a series of events resulting in the School Board's decision to terminate Nairn. Under ordinary circumstances, an employee who claimed to have been notified on his cell phone that his son, a new driver, had been in an accident, as Nairn did, would instantly be accorded permission by his immediate supervisor, in this case Spear, to leave the workplace. But Nairn, through his own actions, had marked himself as untrustworthy. Spear was justifiably unwilling to allow Nairn to leave on Spear's authority, when Spear's own supervisor, Carlo, was present in the building. Spear thus directed Nairn to see Carlo about his request to leave. Nairn went to Carlo's office, and an ugly scene ensued. Carlo was busy with other things, and unaware of the accident, and reasonably did not drop what she was doing to attend to an agitated Nairn. Instead, she told him to wait his turn. Nairn was loud, angry, and sufficiently insistent upon getting Carlo's undivided attention that she got up from her desk to close her door so that she could finish a telephone conversation with an outside vendor. As Carlo tried to close her door, Nairn stuck his foot in the doorway and pushed the door open. Spear got in front of Respondent and eased him away so that Carlo would be able to close the door. Carlo was upset by this incident. She prepared a memorandum describing the incident and requesting that Respondent be dismissed. In addition, Carlo requested that staff advise her if Respondent was entering her office area. On May 3, 2001, Koski recommended dismissal of Respondent based on the February 16, 2001, incident and Respondent’s lengthy disciplinary history. The recommendation was supported by the Associate Superintendent, Bureau of Procurement and Materials Management. As a result, on June 20, 2001, Petitioner initiated the current dismissal proceedings against Respondent. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Nairn.
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 and denying Respondent back pay. DONE AND ENTERED this 25th day of February, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2002. COPIES FURNISHED: John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33128 Moneque Walker, Esquire 8260 West Flagler Street, Suite 1E Miami, Florida 33144 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine 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 organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition.
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) in Palm Beach County, including Boca Raton Community High School (BRCHS). Respondent is employed by the School Board as a custodian, but is currently under suspension pending the outcome of these proceedings. As a custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: 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 SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "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." Article 17 of the SEIU Contract 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 the 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 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 law. 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. Prior to her suspension pursuant to Article 7, Section 2, of the SEIU Contract in December 2008, Respondent was assigned to BRCHS. Respondent started working as a custodian at BRCHS in or around 2006. At the time, she was a full-time employee, with hours from 2:30 p.m. to 11:00 p.m. Respondent had poor attendance as a full-time employee. In or around December 2007, at Respondent's request, the School Board changed her status to a permanent part-time employee, with a four-hour, instead of an eight-hour, work day, five days a week. She continued to work an evening shift. It was hoped that the change to part-time status would result in improvement in Respondent's attendance. Respondent's attendance, however, did not improve. Consequently, on December 3, 2007, Cheryl Lombard, an assistant principal at BRCHS, sent Respondent the following memorandum concerning "[e]mployment [e]xpectations": In order to improve your job performance the following directives must be adhered to in order for the school operations to run efficiently: You are directed to report to duty at your assigned time 4:00 p.m. Monday through Friday, April 10, 2009. You are directed to work your complete four-hour shift from 4:00-8:00 p.m. Monday through Friday. You are directed to bring a doctor's note for every absence stating the dates you were under the doctor's care and that you have been released to perform all job responsibilities without restrictions. You are directed to notify the lead custodian/night administrator anytime you must leave campus during duty hours. You are directed to complete a TDE for all absences, late arrivals, and early dismissals from work. You are directed to follow your duty schedule. You are directed to clean all assigned areas in accordance with the procedures outlined by the District. You are directed to complete all assignments given in accordance with directions given. You are directed to refrain from using your cell phone except during your fifteen- minute break. In case of emergency, please contact Dr. Lombard. You are to report to the head custodian/designee upon your arrival on duty. You are directed to sign out with the lead custodian every night. You are directed to speak to all staff members and others in a professional manner while on District property or on duty. You are directed to refrain from threatening fellow custodians. Failure to follow any of the above mentioned directives will be considered insubordination and may result in disciplinary action up to and including termination. In December 2007, Respondent was absent without leave and/or pay a total of 9.75 hours. She was also out on medical/sick leave a total of 9.5 hours. On January 25, 2008, Ms. Lombard issued Respondent a verbal reprimand (which was followed-up by a "written notation"). The written notation read as follows: This correspondence is being given to you as a Written Notation of a Verbal Reprimand for Violation of School Board Policy 1.013 as it pertains to insubordination for failure to follow Directives Re: Attendance. Specifically, you have had excessive tardies and absences. Furthermore, you have failed to produce a doctor's note stating that you were under his/her care, as was required per the memo you received on December 3, 2007. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will result in further disciplinary action up to and including a recommendation for termination. In January 2008, Respondent was absent without leave and/or pay a total of 22 hours. On February 6, 2008, Ms. Lombard issued Respondent a written reprimand, which read as follows: This correspondence is being given to you as a Written Reprimand for insubordination Re: Attendance after our January 25, 2008 meeting. Specifically, on January 28 and February 4 you were absent and on January 30 you were 30 minutes late for your four (4) hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. Respondent was out on medical/sick leave for a total of approximately six weeks in February and March 2008. On April 17, 2008, Ms. Lombard issued Respondent another written reprimand. This written reprimand read as follows: This correspondence is being given to you as a Written Reprimand for insubordination regarding attendance after our April 15, 2008, meeting. Specifically, on April 16, you were absent for two and one half hours of your four hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. In April 2008, Respondent was absent without leave and/or pay a total of 21 hours. In May 2008, Respondent was absent without leave and/or pay a total of 36 hours. Respondent's brother and father passed away in April and May 2008, respectively. In June 2008, Respondent was absent without leave and/or pay a total of 51.5 hours. In July 2008, Respondent was absent without leave and/or pay a total of 21 hours. She was also out on medical/sick leave a total of 15 hours. 24, Up to and including August 6, 2008, Respondent was absent without leave and/or pay a total of 7.5 hours that month. On August 6, 2008, the principal of BRCHS issued Respondent a written directive, which read as follows: On August 6, 2008, you met with Ms. Lombard, Assistant Principal, and HR Manager Bob Pinkos to discuss the seriousness of your chronic absenteeism and tardiness. During that meeting the Written Directive provided you on December 3, 2007 addressing attendance at work and compliance [with] the duty schedule was discussed. Furthermore, the following disciplinary actions have been issued related to insubordination for failure to adhere to the December 3, 2007 directives. January 28, 2007 [sic] Verbal Reprimand with Written Notation issued for failure to follow the December 3, 2007 directive. February 6, 2008, Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. April 17, 2008, a second Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. A copy of the December 3, 2007 directive is enclosed for your review. Although you have received several disciplinary actions advising you to comply with the December 3, 2007 [directive] your behavior with respect to attendance at work and compliance [with] your duty schedule continues to fail to meet expectations. Future similar incidents, to include those that may occur beyond the date of this directive and related to failing to follow the December 3, 2007 directive, will be considered insubordination and subject to disciplinary action up to and including termination of employment. Your immediate attention to this matter will be appreciated as it would positively impact the operation at Boca Raton Community High School. The remainder of the month of August 2008, Respondent was absent without leave and/or pay a total of 22.25 hours and out on medical/sick leave a total of 3.5 hours. In September 2008, Respondent was absent without leave and/or pay a total of 33.25 hours. She was also out on medical/sick leave a total of 4 hours. In October 2008, Respondent was absent without leave and/or pay a total of 23.25 hours. She was also out on medical/sick leave a total of 5 hours. At the end of October 2008, following the completion of an "administrative personnel investigation of Respondent's "behavior with respect to attendance at work and compliance [with her] duty schedule," a "pre-disciplinary meeting" was held at which Respondent was given the opportunity to "explain or rebut the outcome of the investigation." At the meeting, Respondent acknowledged that she had "missed lots of time from work," but she claimed that she had "been trying to improve her attendance." In November 2008, Respondent was absent without leave and/or pay a total of 24.25 hours. Respondent was out on medical/sick leave for her entire four hour shift on December 1, 2008. On December 2, 2008, she was absent without leave and/or pay .25 hours. The following day, she was suspended. Respondent's poor attendance has adversely affected others at BRCHS. Sometimes, the work Respondent was responsible for was done, in her absence, by the other custodians at the school, which "created a bit of unrest" because these custodians also had their own work to do. On other occasions, when Respondent was absent, the work she was assigned went undone, which created a "problem for teachers [and their students] when they c[a]me in the next morning" and had to deal with classrooms that were not cleaned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 13th day of April, 2009, 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 13th day of April, 2009. COPIES FURNISHED: Sonia E. Hill-Howard, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Karen Gadson 1711 Wedgewood Plaza Drive Riviera Beach, Florida 33404 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the School Board of Lee County (School Board) should terminate the Respondent, Christel Freeman, for fighting with another school bus employee on School Board property.
Findings Of Fact The Respondent, Christel Freeman, has been a school bus driver employed by the School Board since 2002. There was no evidence that she was anything other than an exemplary employee until an incident that occurred at the School Board’s Leonard Street bus compound at the end of the work day. She and her boyfriend, Mike Ortes, were driving their personal vehicle from the back of the compound to the front, where the employees clock out and usually visit for a while before going home, when she spotted another employee, Ashley Thomas, who had just recently been transferred to Leonard Street. The Respondent approached Thomas, who was visiting with co-workers at a picnic table, because she suspected that Thomas was having sexual relations with her boyfriend and wanted to tell Thomas to stay away from her boyfriend, stop interfering with the Respondent’s family unit, and stop “talking trash about her.” When she got within earshot, the Respondent asked Thomas if they could talk in private. Thomas said, yes, and the two walked away from the co-workers at the picnic table. The Respondent began to tell Thomas what she wanted to talk about, and the conversation soon became heated. After they left the view of the co-workers at the picnic table, they passed another co-worker who was sitting in a vehicle and who said something to Thomas. As Thomas turned to respond to the speaker, the Respondent struck Thomas with her hand or fist on the side of the face, near the eye. Thomas was carrying her car keys, cell phone, and purse and was surprised by the blow. When the Respondent followed up with another blow, Thomas began to defend herself by hitting back. The nearby co-workers very quickly ran to the combatants to separate them. In the process, the combatants fell down, with the Respondent landing on top. The scuffling continued for a brief time until the combatants were separated. By this time, Thomas’s shirt had been torn open at the front buttons, her face was bruised and swelling, and her eye was hurt. The Respondent also had an eye injury from being hit with Thomas’s car keys. The police were called, but the Respondent left the scene with her boyfriend by the time the police arrived. After some leading questions by the Respondent, Ortes supported her testimony that they went to the hospital for emergency treatment for her eye and, once there, called the police, who responded to the hospital. After discussing the incident with the police, neither woman pressed charges. The Respondent’s primary defense is that after she called Thomas a “nasty bitch,” Thomas struck her first with the car keys, and the Respondent defended herself. However, the other witnesses to the incident saw it the other way around, with the Respondent hitting first without provocation. The Respondent attempted to undermine that testimony by saying those witnesses were family and friends of Thomas. To the contrary, the evidence was that the family and friends of Thomas were not the eyewitnesses who testified; rather, Thomas’s family and friends either did not testify or testified that they were not eyewitnesses to the incident. While the Respondent attempted to downplay the state of her emotions at the time of the incident, it is clear from the evidence that she was angry at Thomas and initiated the conversation in that state of mind. It is possible that what triggered the Respondent’s violence was Thomas saying the Respondent should ask her boyfriend for the answers to her questions, which the Respondent took as flaunting an admission that they were having sexual relations. According to the Respondent’s testimony, her job with the School Board is very important to her and her family. Notwithstanding that she has not admitted instigating the fight with Thomas and throwing the first blow, she understands that the consequences of engaging in similar conduct again would certainly be the permanent loss of her job. For that reason, it is unlikely that she would put herself in that position in the future. There is a collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (SPALC) that governs the Respondent’s employment. The procedure followed in the Respondent’s case is set out in sections 7.10 and 7.103 of the SPALC agreement. Section 7.10 of the SPALC agreement provides: The parties agree that dismissal is the extreme disciplinary penalty, since the employee’s job seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary actions(s) taken against SPALC bargaining unit members shall be consistent with the concept and practice of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause. Section 7.10 also states that employee misconduct is a ground for suspension without pay or termination of employment. The SPALC agreement does not define misconduct. The School Board has policies that govern employee conduct. Policy 4.09 adopts a “zero tolerance” policy for threats of violence. It prohibits “any verbal, written or electronically communicated threat, suggestion or prediction of violence against any person.” Id. “Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.” Id. School Board Policy 5.29(1) states: “All employees are expected to exemplify conduct that is lawful and professional ” School Board Policy 2.02(2) describes and prohibits “unacceptable/disruptive behavior.” This includes “[u]sing unreasonable loud and/or offensive language, swearing, cursing, using profane language, or display of temper.” Id. at ¶ (b). It also includes “[t]hreatening to do bodily or physical harm to a . . . school employee . . . regardless of whether or not the behavior constitutes a criminal violation.” Id. at ¶ (c). It also includes “[a]ny other behavior which disrupts the orderly operation of a school, school classroom, or any other School District facility.” Id. at ¶ (e). Section 7.103 of the SPALC agreement allows an employee being terminated to either file a grievance under Article 5 or request a hearing before the School Board, but not both. Section 7.13 of the SPALC agreement provides that employees “shall not engage in speech, conduct, behavior (verbal or nonverbal), or commit any act of any type which is reasonably interpreted as abusive, profane, intolerant, menacing, intimidating, threatening, or harassing against any person in the workplace.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding the Respondent guilty of employee misconduct and either terminating her employment, or suspending her without pay and reinstating her upon entry of the final order. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 27th day of June, 2014. COPIES FURNISHED: Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Nancy J. Graham Superintendent of Lee County Schools 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Christel Freeman 2119 French Street Fort Myers, Florida 33916-4434
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2010.
