The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the offenses alleged in the Notice of Specific Charges. If so, whether such offenses provide the School Board of Miami-Dade County with just or proper cause to take disciplinary action against Respondent. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida, including Melrose Elementary School (School). Respondent has been employed by the School Board as a Cook I and assigned to the School since August of 1999.2 At all times material to the instant case, her regular working hours have been 6:30 a.m. to 1:00 p.m. Respondent's Supervisors Tonia Scott is now, and has been at all times material to the instant case, the Food Service Manager at the School and Respondent's immediate supervisor. For the past five years, Cynthia Gracia has been the Principal of the School. As Principal, she has had ultimate supervisory authority over all employees at the School, including those working in the School's cafeteria. The Collective Bargaining Agreement As a Cook I 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 IX, Section 1.F., of the AFSCME Contract provides that "[e]mployees shall not . . . be compelled to work beyond their scheduled workday, unless they are compensated for such additional time." Article IX, Section 4.A., of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Article IX, Section 8., of the AFSCME Contract addresses the subject of "[o]vertime." It provides, in pertinent part, as follows: It shall not be the general policy of the Board to have its employees work frequent or consistent overtime; however, when employees are directed to work overtime, in addition to their regular hours, aggregating more than a maximum of 40 hours per week, they shall be compensated as follows: The rate of time and one-half of the normal rate shall be paid for all hours in a pay status per week over the regular weekly task assignment, aggregating more than a maximum of 40 hours per week. . . . F. By mutual consent of the supervising administrator and the employee, compensatory time, in lieu of overtime pay, may be given and used in lieu of overtime pay. In such cases, one and one-half hours of compensatory time shall be provided the employee for each hour of overtime worked. Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction." Section 1 of Article XI is entitled "Due Process" and 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. 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. 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" and 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 3 of Article XI is entitled "Cause for Suspension" and provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Article XI, Section 6.2., of the AFSCME Contract provides as follows: Materials relating to work performance or such other matters that may be cause for discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment. No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming aware of the facts reflected in the materials. The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure. There shall be no statements placed in an employee's personnel file unless the employee has bee given a copy. School Board Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,3 including School Board Rule 6Gx13-4-1.08 and School Board 6Gx13- 4A-1.21. School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools employees have a right to work in a safe environment. Violence or the threat of violence by or against students and employees will not be tolerated. 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. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. The July 11, 2000, Incident On July 11, 2000, during working hours, while in or near the School's cafeteria, Respondent muttered the words "mother fuckers" loudly enough to be heard by Principal Gracia, who, unbeknownst to Respondent, was standing directly behind Respondent. After getting Respondent's attention and letting Respondent know that she had heard what Respondent had said, Principal Gracia asked Respondent to accompany her to the Assistant Principal's office. Respondent complied with Principal's Gracia request and met with Principal Gracia, as well as the School's Assistant Principal, Earnestine Thomas, in Assistant Principal Thomas' office. During the meeting, Principal Gracia verbally directed Respondent to refrain from using profanity and other disruptive language while on School grounds, explaining that it was "totally inappropriate" for her to engage in such conduct. In addition, Principal Gracia provided Respondent with a copy of School Board Rule 6Gx13-4A-1.21. On July 21, 2000, Respondent received the following memorandum from Principal Gracia regarding "[i]nappropriate [b]ehavior": As a follow-up to the meeting held on July 11, 2000, in the Assistant Principal's office, find below a recount of the issues discussed in the presence of the Assistant Principal, Earnestine Thomas, Geneva Washington, Cook I and Cynthia Gracia, Principal. On July 11, 2000, during the 12:30 lunch block you were observed and overheard by Cynthia Gracia, Principal, refer to the electricians as "Mother Fuckers." Once you realized I was standing directly behind you, you squeamishly said, "I didn't see you there." You were verbally directed to refrain from using profanity or any and all language disrupting the normal operation of school. Failure to comply will result in further disciplinary action. You were provided a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. The November 21, 2000, Incident On November 21, 2000, while lunch was being served in the School's cafeteria, Respondent observed that Melania Argenal, a Spanish-speaking Cafeteria Monitor, had not paid for her lunch. Ms. Argenal was not among the employees "allowed [in accordance with School Board policy] to eat free" in the cafeteria. Because Respondent did not speak Spanish, she asked another employee (Julio, the zone mechanic), who was able to converse in both English and Spanish, to tell Ms. Argenal (in Spanish) that, pursuant to School Board policy, Ms. Argenal had to pay for her lunch. In taking such action to inform Ms. Argenal that she was not entitled to "eat free" in the cafeteria, Respondent was acting in accordance with instructions she had been given by her immediate supervisor, Ms. Scott. Later that day, at approximately 1:05 p.m., Principal Gracia walked into the School's cafeteria, where she was approached by Ms. Argenal. Ms. Argenal told Principal Gracia that, earlier that day during lunch, Respondent had embarrassed and humiliated Ms. Argenal in front of others in the cafeteria. Although it was after the end of her regular workday, Respondent was still at work, "finishing up" in the cafeteria. Principal Gracia walked up to Respondent and asked Respondent to report to the Principal's office upon the completion of her duties. Respondent inquired as to why Principal Gracia wanted to meet with Respondent. Not receiving any response to her query, Respondent told Principal Gracia that if the meeting was to discuss the incident involving Ms. Argenal earlier that day, Respondent wanted her union representative, Herman Bain, to be present at the meeting. Principal Gracia indicated that Mr. Bain would not be welcome at the meeting. During Principal Gracia's and Respondent's encounter in the cafeteria, Principal Gracia admonished Respondent that Respondent did not "have the right to tell [any]one what to do because it was [Principal Gracia's] school." This admonition made Respondent "very upset." She began crying hysterically and, as a result, became short of breath. While Respondent was in this emotional state, Principal Gracia repeated her request that Respondent report to the Principal's office. Terry Haynes, the Head Custodian at the School, witnessed the encounter between Principal Gracia and Respondent in the cafeteria. When Respondent began to cry, Mr. Haynes walked up to her and told her that "she needed to stop crying and calm down, and when she finished calming down, she could go down and talk to Ms. Gracia." Respondent followed Mr. Haynes' advice. She waited a few minutes before leaving the cafeteria to go to Principal Gracia's office. Principal Gracia (who had remained in the cafeteria while Respondent attempted to regain her composure) followed Respondent to the office. Once in the office, Principal Gracia sat down behind her desk and instructed Respondent to take a seat. Respondent refused to do so, stating that she preferred to stand. Standing with her hands on her waist in front of Principal Gracia's desk, a short distance from Principal Gracia, Respondent (who was still upset) spoke to Principal Gracia in an unnecessarily loud and disrespectful manner. Principal Gracia's repeated instructions to Respondent that Respondent sit down and lower her voice went unheeded. Rather than lowering her voice, Respondent defiantly raised it. She shouted belligerently at Principal Gracia, "You don't tell me to lower my voice because my mama gave me this voice." Respondent's yelling could be heard in the main office. Assistant Principal Thomas then entered Principal Gracia's office. Her presence had a calming influence on Respondent and the meeting was able to continue. Although Principal Gracia's secretary, Maureen Mari, called "security" to the scene, the Security Monitors who responded remained outside Principal Gracia's office and made no attempt to remove Respondent from the office. At the conclusion of her meeting with Principal Gracia and Assistant Principal Thomas, Respondent left Principal Gracia's office without incident. At no time while she was in Principal Gracia's office did Respondent threaten, by words or conduct, to physically harm Principal Gracia. After Respondent departed, Principal Gracia filled out an incident report describing what had occurred that day between her and Respondent. The matter was investigated by the School Board Police Department. A Preliminary Personnel Investigation Report (Report) was issued by the School Board Police Department on January 22, 2001. The Report contained the following "[c]onclusion": Based on the information gathered during this investigation, there is sufficient evidence to prove that on November 21, 2000, Geneva Washington, Cook, Melrose Elementary School, disrupted the normal operation of the school by raising her voice, and ignoring Ms. Gracia's numerous requests to lower it, during a conference. Ms. Washington's outburst caused office personnel to call school security for fear of impending violence on the part of Ms. Washington towards Ms. Gracia. Ms. Washington was given several opportunities to respond to these allegations, however, she failed to show for three scheduled interviews. Furthermore, Ms. Washington ignored a Directive issued to her on July 11, 2000, warning her against use of such conduct in the workplace. Therefore, the allegation of Improper Conduct against Ms. Washington is Substantiated. A conference-for-the-record was held with Respondent on March 13, 2001, to discuss the "substantiated" allegation of "Improper Conduct," as well as Respondent's future employment with the School Board. In attendance, in addition to Respondent, were: Principal Gracia; Essie Pace, the Director of Operations for the School Board's Region III; Virginia Bradford, the Executive Director of the School Board's Office of Professional Standards; and Mr. Bain of AFSCME, who was acting as Respondent's union representative. Ms. Bradford prepared and sent to Respondent (by certified mail, return receipt requested) a memorandum, dated March 23, 2001, in which she summarized what had transpired at the conference-for-the-record. In those portions of the memorandum addressing the "[a]ction [t]aken" and the "[a]ction [t]o [b]e [t]aken," Ms. Bradford wrote the following: Action Taken As a result of the investigative findings and conference data, 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: Remain in control of yourself and project a professional demeanor at the workplace and in all interactions with staff. Comply with School Board Rule 6Gx13-4- 1.08, Violence in the Workplace, a copy of which was given to you at the conference. Comply with School Board Rule 6Gx13-4A- 1.21, Responsibilities and Duties, a copy of which was given to you at the conference. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit and to the service provided to students. You were 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. You were advised to keep information presented in this conference confidential and not discuss this with students or staff. 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 Professional Standards, the Superintendent of Region III, and the Principal of Melrose Elementary School. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. All disciplinary action shall be consistent with 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 are apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. Respondent did not exercise her right "to clarify, explain, and/or respond to any information recorded" in Ms. Bradford's March 23, 2001, memorandum. At its July 11, 2001, meeting, the School Board "took action to suspend [Respondent] without pay for 10 working days, effective at the close of the workday, July 11, 2001, for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4-1.08, Violence in the Workplace; and 6Gx13-4A- 1.21, Responsibilities and Duties/Conduct Unbecoming a School Board Employee." The Case of Ola Smith Ola Smith is a Cafeteria Worker at the School. On February 3, 1999, Ms. Smith received a written reprimand from Principal Gracia for insubordination, failure to follow a directive, falsifying a legal document,4 and defiance of authority. At the time that she received her reprimand, Ms. Smith had no prior disciplinary record and therefore her situation was different than was Respondent's when Respondent received her ten-day suspension.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order dismissing Count I of the Notice, finding Respondent guilty of Counts II and III of the Notice, reducing Respondent's ten-day suspension to a five-day suspension, and awarding Respondent five days back pay. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. 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 7th day of December, 2001.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
The Issue Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 1012.39. . . . "Employee" means any person employed as an educational support employee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause." Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows: (B) 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 be grounds for termination. . . . School Board Rule 6Gx13-4E-1.01 provides as follows: Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows: Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: 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. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows: These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; or Effect leave procedures (request for leave [form] attached); or Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.) You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum. Respondent testified, credibly, that he did not intend to abandon his employment. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment. DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of October, 2003.
The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 September, 2002.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district 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 by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 December, 2002.
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
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 Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made are made to supplement and clarify the stipulations of fact set forth in the parties' January 11, 2002, Stipulation: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since October of 1992. She is currently under suspension pending the outcome of this disciplinary proceeding. Respondent was initially employed as a substitute bus driver. Since March of 1993, she has held a regular school bus driver position. At all times material to the instant case, Respondent was assigned to the School Board's Southwest Transportation Center (Center). Mary Murphy has been the director of the Center for the past seven years. Since August of 1999, Aned Lamboglia-Candales has been the Center's coordinator. As such, she "monitor[s] all attendance at the [C]enter" and assists Ms. Murphy in dealing with personnel problems at the Center. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus driver 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 IX, Section 4.A., of the AFSCME Contract addresses the subject of "newly-hired employees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Article IX, Section 13., of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. 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. 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. 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 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. 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-- . . . . According to Article V, Section 18., of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27., of the contract, which provides as follows: 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. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. 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. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], and [p]olic[ies]" and, if she does not, she may be disciplined.1 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. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . 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 drivers and aides are governed by the following "[a]ttendance [p]olicy": 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. 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 leave2 -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. Pre-2000-2001 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 1, 1999, Ms. Lamboglia-Candales held a Conference-for-the-Record with Respondent to discuss Respondent's "unauthorized absences since March of 1999." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record during this year and it was held to review your unauthorized absences since March of 1999 when the first conference was held. . . . During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . Since the conference in March of 1999 you have incurred approximately thirty (30) days of unauthorized leave without pay. This administrator also informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to the fact that you suffer from migraine headaches, high blood pressure as well as another medical condition that requires surgery to remove some growths. The medication that you take prevents you from driving since it makes you drowsy. You also stated that you do not always go to your physician's office for treatment. You provided this administrator with documentation of one of the medications you take as well as the names of the physicians that treat you. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were also instructed to provide this administrator with documentation regarding your condition or treatments. Also, whenever you have a medical appointment to provide documentation verifying those. ACTION TO BE TAKEN This administrator will continue to monitor your attendance. A supervisory referral to the district support office was not done on your behalf since Ms. Ramsby, AFSCME Representative stated on your behalf that it was not necessary. Also please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the collective bargaining agreement between the School Board and AFSCME that were referenced in the memorandum. On March 1, 1999, Respondent received a verbal warning from Ms. Lamboglia-Candales concerning Respondent's "unauthorized leave." That same day, Respondent was presented by Ms. Lamboglia-Candales with a written Transportation Operations Procedures Reminder reflecting that Respondent had received the aforementioned verbal warning and directing Respondent to review Article V, Section 27., and Article XI, Section 4.B., of the collective bargaining agreement between the School Board and AFSCME. On May 3, 2000, Ms. Lamboglia-Candales issued Respondent a written warning concerning Respondent's "unauthorized leave." When the written warning was presented to Respondent on May 23, 2000, she refused to sign it. On July 21, 2000, Ms. Lamboglia-Candales held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This Conference-For-The-Record was held to review your unauthorized absences since . . . August 30, 1999. It was originally scheduled for June 9, 2000 but since you were not available that day it was re- scheduled for this day. During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . You received a verbal warning on March 1, 2000 and a written warning on May 23, 2000. . . . Since August 30, 1999 you have incurred approximately thirty-five unauthorized days (35) of leave and twenty-five (25) authorized days. You have been absent from work a total of seventy (70) days in one school year which is approximately ten months or 181 work days for employees in your bargaining group. You stated that many of your unauthorized absences were due to the fact that you have medical problems (high blood pressure). You also stated that the medication you are taking is not keeping it under control but your physician was going to change it to see if it helped. You also mentioned that you were considering taking a temporary demotion to a bus aide position until you felt better. You presented documentation for some of the days you have been absent and this administrator reviewed it. She reminded you that all documentation regarding absences should be brought in as soon as the absence occurs and not months later. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . She also informed you that if you decided to take the voluntary demotion to bus attendant you could discuss this with her at a later date. ACTION TO BE TAKEN This administrator will do a supervisory referral to the district support agency at this time and will continue to monitor your attendance. Also you are informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. As promised, Ms. Lamboglia-Candales referred Respondent to the School Board's Employee Assistance Program on July 25, 2000, and advised Respondent of the referral on that same date. Approximately a week after the July 21, 2000, Conference-for-the-Record, Respondent told Ms. Lamboglia- Candales that her physician had changed her medication and that the new medication "was working" and her "blood pressure was fine." As a result, she told Ms. Lamboglia-Candales, she was not going to pursue the temporary demotion to bus aide that she had previously discussed with Ms. Lamboglia-Candales. The 2000-2001 School Year On February 1, 2001, Ms. Lamboglia-Candales, along with Charlie Horn, an administrative assistant at the Center, held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Mr. Horn subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference and what "action [would] be taken." Mr. Horn's memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record in the past twelve months during this year and it was held to review your unauthorized absences since July 21, 2000 when the other conference was held. . . . During this conference you were provided with a copy of your leave history and Ms. Candales reviewed it with you. Since the conference on July 21, 2000 you have incurred approximately fifteen (15) days of unauthorized leave without pay. Ms. Candales informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to dentist and court appointments. You provided Ms. Candales with documentation to review. . . . Ms. Candales reviewed it in your presence and determined that approximately 15 days of unauthorized leave could have been authorized had you presented the documentation at the time the absence occurred. ACTION TAKEN Ms. Candales reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were once again instructed to provide Ms. Candales with documentation regarding your appointments and/or absences. It is important that you present your documentation in a timely manner meaning as soon as the absence occurs and not months later. ACTION TO BE TAKEN Ms. Candales will continue to monitor your attendance. A supervisory referral to the district support agency will not be done at this time. Also, please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. On March 29, 2001, the Center's director, Ms. Murphy, held a Conference-for-the-Record with Respondent to discuss "her job performance as related to [her] attendance." Ms. Murphy subsequently prepared (on April 23, 2001) and furnished to Respondent (on May 3, 2001) a memorandum in which she summarized what had transpired at the conference. Ms. Murphy's memorandum read as follows: A Conference-For-The-Record was held in the office of the director of Southwest Regional Transportation Center on Thursday, March 29, 2001. The following were in attendance, Ms. Linda Hogans, Bus Driver, Ms. Joyce Moore, AFSCME, Ms. Carolyn Ransby, AFSCME, Ms. Dorothy Ferguson, Administrative Assistant, and Ms. Mary E. Murphy. The purpose of this conference was to review your job performance as related to your attendance. You were given a copy of your leave history, which was reviewed during the conference. Since the beginning of this school year, you have accumulated 27 unauthorized absences. The original total was 44 days and after reviewing the medical documentation you provided during the conference, the amount of days was changed to a total of 27 unauthorized days. Ms. Moore questioned the conference held by Mr. Horn and Ms. Candales when you presented documentation but Ms. Candales did not accept the documents. The days have been approved and the total days have changed again to 15 and a half unauthorized days without pay. You were asked why you had accumulated so many unauthorized days? Ms. Moore stated that at one time you were caring for a cousin who could not care for [her]self. This cousin later died. Also, you had [a] death in the family and you have been injured on the job, which plays a big part with your absences. You indicated that you have high blood pressure and you doctor tried several different medications to maintain control. You indicated that there are times when you do not feel well so you stay home. I asked if your doctor supplied you with notes? You indicated that the doctor would give you some notes but not all of the time. I explained that when you present documentation, those days would be authorized. Ms. Moore asked if you had previous conferences. I answered yes that Ms. Hogan[s] has had a couple of conferences. During one of the conferences held by Ms. Candales, you were advised to present documentation directly to her so your absences could be authorized. Ms. Candales held a conference with Ms. Hogan[s] on July 21, 2000. This conference was held during the summer months but the conference did not include unauthorized days accumulated during the summer. Ms. Ferguson stated that the conference was held in July because several attempts were made to have the conference in June and Ms. Candales was not able to conduct the conference due to the amount of days you were off. During the conference you were directed to: To come to work and be on time. If you need to be off, present documentation to Ms. Candales or myself. If either the Coordinator or Director is not available, give the documentation to the Administrative Assistant on duty. You signed a supervisory referral to the District Support Agency. You were told that the summary of this conference would be forwarded to Mr. Jerry Klein, Administrative Director and the Office of Professional Standards for review for possible disciplinary actions not excluding dismissal. Also you were informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Ms. Moore stated that going to District support is not all bad [in] that the district has many programs to help employees. It is not just for disciplinary problems. I mentioned that during the yearly in-service District Support is discussed and explained to the employees. Ms. Moore stated that in the in-service meeting there is so much noise that no one can hear. Ms. Hogan[s] said that she was not aware of the program. I checked her file and found out that Ms. Candales referred Ms. Hogan[s] in July 5, 2000. Ms. Hogan[s] declined to participate. By signing (on March 29, 2001) the "supervisory referral to the District Support Agency" mentioned in Ms. Murphy's memorandum, Ms. Hogans signified that she had "been advised of the referral." Following the March 29, 2001, Conference-for-the- Record, Respondent continued to have unauthorized absences. On June 7, 2001, Barbara Moss, a district director in the School Board's Office of Professional Standards, held a Conference-for-the-Record with Respondent to discuss her absenteeism and her "future employment status" with the School Board. Ms. Moss subsequently prepared and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. In the "Action To Be Taken" portion of the memorandum, Ms. Moss stated the following: 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 Professional Standards, the Associate Superintendent of School Operations, the Administrative Director of Transportation, and the Director of Southwest 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 Associate Superintendent, will compel formal notification of the recommended disciplinary action. All disciplinary action(s) shall 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/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. Ms. Moss provided Respondent the opportunity, following the Conference-for-the Record, to present documentation concerning any unauthorized absence that Respondent believed should be excused. Respondent took advantage of this opportunity and provided Ms. Moss with five or six letters from the Office of the Miami-Dade State Attorney asking that Respondent's absence from work on various dates be excused because she was "subpoenaed to the Office of the State Attorney" on those dates in connection with a criminal case, State v. China Wilson, Case No F00-21153, in which she was an "essential witness." Upon reviewing the letters, Ms. Moss noticed that there were "obvious" alterations on "a couple of the letters." Dates had been typed in over "white-out" and they "were jammed together." Ms. Moss faxed to the Office of the Miami-Dade State Attorney copies of all of the letters she had received from Respondent following the June 7, 2001, Conference-for-the-Record and inquired whether these letters were authentic. Ms. Moss was told by the assistant state attorney assigned to the State v. China Wilson case that "there was only one letter that was authentic." Ms. Moss subsequently met with Respondent, who was accompanied during the meeting by the senior vice president of AFSCME, Christine Harris, and an AFSCME shop steward, Charlie Lynch. Ms. Moss "showed them the [letters she had received from Respondent] and let them know that [the School Board was] moving forward with dismissal." In response to this advisement, either Respondent or Ms. Harris indicated that Respondent wanted to resign in lieu of being terminated and that she would like to have the aforementioned letters returned to her. Ms. Moss gave Respondent back the letters (without making copies of them). Respondent then left. A few minutes later, Respondent returned and indicated that she was "rescind[ing] her offer to resign." On August 10, 2001, the Superintendent of Schools sent a letter to Respondent advising her that he was recommending that the School Board, at its scheduled meeting on August 22, 2001, "suspend [her] and initiate dismissal proceedings against [her] effective the close of the workday, August 22, 2001, for just cause, including, but not limited to: excessive absenteeism; non-performance and deficient performance of job responsibilities; and violation of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves." At its August 22, 2001, meeting, the School Board took the action recommended by the Superintendent of Schools. On more than one occasion during the 2000-2001 regular school year, Respondent had three or more consecutive workdays of unauthorized absences. The regular school year workdays during the 12-month period ending June 1, 2001, on which Respondent had unauthorized absences include (in addition to those set forth in the parties' January 11, 2002, Stipulation) the following: June 6, 2000 (whole day); June 9, 2000 (whole day); November 9, 2000 (whole day); December 15, 2000 (whole day); January 30, 2001 (half day); February 5, 2001 (whole day); May 25, 2001 (half day); May 30, 2001 (whole day); May 31, 2001 (whole day); and June 1, 2001 (whole day). Respondent also had numerous authorized absences (with and without pay) during the 12-month period ending June 1, 2001. From August 24, 2000, through May 24, 2001, she had 41 1/2 workdays of authorized absences without pay and ten and a half workdays of authorized absences with pay. Many of the authorized absences without pay were initially unauthorized absences, but they were converted to authorized absences without pay following the review of documentation provided by Respondent. The refusal of School Board administrators to excuse any additional unauthorized absences was within their sound discretion. They were under no obligation to do so. They acted reasonably, given Respondent's failure to present in a timely manner credible documentation demonstrating that these additional unauthorized absences were the result of extenuating circumstances and further considering Respondent's pattern of excessive absences. Respondent's excessive absences had an adverse impact on the Center's operations. As Ms. Murphy explained during her testimony (at page 158 of the hearing transcript): "[W]henever . . . a driver has a route and [the driver] take[s] off, then we have to place a substitute or a stand-by driver on it. And whenever that occurs, the route automatically runs late, because the regular driver[] knows the route better than the substitute driver or stand-by driver[].
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 4.B., of the AFSCME Contract. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. 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 16th day of May, 2002.
