The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
The Issue The issue in this case is whether Respondent’s employment should be suspended and terminated for the reasons set forth in the Amended Petition for Involuntary Resignation.
Findings Of Fact Respondent began her employment with Petitioner as a substitute teacher in November of 1997, and was later hired as a regular teacher in January of 2000. Respondent held a temporary teaching certificate which expired after the time period at issue in this case. Respondent was first assigned to teach at Santaluces High School and was later assigned to Bear Lakes Middle School, where she taught geography. On April 12, 2002, Respondent was injured in the line of duty while attempting to assist another teacher control unruly students. In that incident Respondent fell and injured both her back and her knee. Respondent was authorized by Petitioner’s workers’ compensation administrators to treat with both Dr. Wexler and Dr. Lichtblau for her injuries.1 Following the accident on April 12, 2002, Respondent continued to work at Bear Lakes Middle School until on or about November 11, 2002, when she was placed on a light duty assignment at another location. Respondent had been placed on light duty by Dr. Wexler because he felt it was medically necessary. Thereafter, Respondent was given several light-duty assignments to accommodate her physician-imposed work restrictions, including assignments to Conniston Middle School, Risk Management, JFK Middle School, Gold Coast Community, and the District’s substitute office. Respondent was placed on light-duty assignments by the Palm Beach County School Board (School Board) for a total of more than ten months. The light-duty assignments provided by the School Board are temporary assignments that are made available in lieu of workers’ compensation payments to employees who are able to perform light duty. They are not offered for an indefinite period of time, nor are they offered as a permanent employment option. Following some confused communications about Respondent’s certification status and some further confused communications as to whether Respondent had reached maximum medical improvement and could return to a seven-and-a-half hour per day classroom teacher position, Respondent was offered a job teaching full-time (seven-and-a-half hours per day) at Jeaga Middle School. Respondent was supposed to begin teaching at Jeaga Middle School in September of 2003. On September 10, 2003, Dr. Wexler, one of Respondent’s treating physicians wrote that he agreed with another physician’s assessment that Respondent had reached maximum medical improvement and could work eight hours per day with certain restrictions that could be accommodated in a classroom teaching setting. Later that month, Dr. Wexler explained that there had been some confusion on September 10, 2003, and that he was of the view that Respondent had not yet reached maximum medical improvement and that Respondent’s work hours should be restricted to four hours per day. Respondent declined the offer of the full-time teaching position at Jeaga Middle School and requested that the School Board offer further light-duty work assignments of no more than four hours per day. The School Board promptly informed Respondent that she would not be offered any further light-duty assignments and that if she was not going to accept the full- time position at Jeaga Middle School, she should apply for leave without pay in order to avoid being terminated by the School Board. At an earlier time following her April 12, 2002, injury, Respondent was on leave without pay for a period of time. During that period she received workers’ compensation benefits in lieu of wages or salary. During that period of time Respondent was dissatisfied with the workers’ compensation benefits she received. Because of that prior negative experience, Respondent did not want to again request leave without pay, which would require her to rely on workers’ compensation benefits until she reached maximum medical improvement. Respondent did not accept the full-time position at Jeaga Middle School and did not apply for leave without pay. Respondent did not apply for any other regular employment opportunities with the School Board. Respondent did continue to request assignment to a light-duty position for four hours per day. The School Board advised Respondent on several occasions that she would not be assigned to any further light-duty positions and that it would be in her own best interest to apply for leave without pay to avoid termination from the School Board. As a teacher employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Classroom Teachers Association (CTA) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and the CTA (CTA Contract). The subject of unpaid leaves is addressed at page 55 of the CTA Contract, which includes the following language: SECTION C - UNPAID LEAVES: GENERAL PROVISIONS All absences of employees from duty shall be covered by leave applications which are duly authorized, a copy of which shall be provided employees upon request. Except for short-term leaves of absence, and intermittent political leave, unpaid leaves shall be timed such that the employee returns at the beginning of a new grading period. Except for extenuating circumstances, Sick Leave without Pay for Personal Illness or Illness/death of a Family Member, for more than ten (10) days, also shall be timed so that the employee returns at the beginning of a grading period. An employee taking an approved unpaid leave shall retain the same contractual and salary credit status as he/she had upon taking such leave and shall be returned to the same school, and within certification, to the same assignment he/she held prior to taking the leave, if said leave is for a duration of twelve (12) months or less. However, an employee while on an unpaid leave shall be subject to the Excessing Procedure and the Lay-Off/Call-Back Procedure of this Agreement the same as if they were not on leave. If these procedures become operative and affect the employee on leave, he/she may not be returned to the same position he/she held prior to taking leave. Likewise, employees while on an unpaid leave maintain their rights to apply for transfers and/or reassignments as provided by this Agreement. * * * SECTION D - UNPAID LEAVES: SPECIFIC PROVISIONS Short Term Leave of Absence - Any employee desiring short term leave of absence shall make written application for such leave to the Principal or immediate supervisor. Except in emergency situation, such applications shall be approved in advance. Leave for emergencies may be deemed to be granted in advance, if prompt report is made to the proper authority. The first five (5) requested days of short term leave, whether covered by one (1) or more than one (1) request, will be approved. Requests for short term leave thereafter, regardless of length, will be granted or denied by the District in its discretion. Applications for more than five (5) working days will require that a reason be given and shall be subject to approval by the Superintendent. Employees shall not be gainfully employed during normal working hours while on such leave. Long Term Leave of Absence - A long term leave of absence is permission granted by the Board, at the District’s discretion, for an employee to be absent from his/her duties for specified periods of time with the right of returning to duty on expiration of the leave. Leave shall be officially granted in advance by the District and shall be used for the purpose set forth in the leave application. Such long-term unpaid leave, when granted, will be for the remainder of the school year, unless otherwise approved with the initial leave request. In addition, up to one (1) additional year of leave shall be granted upon receipt of a written request from the employee, unless the employee has not been reappointed in keeping with other provisions of the Agreement for the next school year. Such extension of long-term leave shall be timed such that the employee returns at the beginning of a new grading period. Once an employee has exhausted the leave privileges under this subsection (Long-term Leaves), the employee shall be required to return to duty for a full year before being eligible for another long-term unpaid leave. As a School Board employee, Respondent is subject to applicable School Board rules and regulations, including School Board Policy 3.80 and School Board Directive 3.27. School Board Policy 3.80 addresses unpaid leaves when an employee’s sickness has extended beyond all compensable leave. School Board Directive 3.27 addresses the general topic of separation from employment. Under the caption “Suspension/Termination” the directive provides: 3. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes (now § 1012.67, Fla. Stat.). * * * e. Incompetent to perform regular work duties. Incompetency is defined as incapacity to perform due to lack of emotional stability or physical ability; or lack of adequate command of the designated area of work. Employees are also incompetent when they repeatedly fail to perform duties prescribed by law and by this district. [2] Respondent was personally advised on numerous occasions that if she did not apply for a leave of absence, she would be absent without approved leave and would be subject to termination. Respondent was absent without authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 20th day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2005.
The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), 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,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the 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: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. 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 accumulated 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 are 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. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * 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. . . . 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. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
Findings Of Fact Respondent, Magda R. Cenal (Cenal) has been employed by Petitioner, School Board of Dade County (School Board) as a music teacher for primary grades since 1972. On November 19, 1986, the School Board suspended Cenal from her position, and sought her dismissal for excessive absenteeism for the school years 1975-76 through 1985-86. Cenal contests the School Board's action, and contends that she has a right to job protection under her contract of employment when on approved leave and that all her absences were duly approved. The proof is uncontroverted that during the school years 1975-76 through 1985-86 Cenal was absent from her employment for protracted periods of time, and that such absences impaired her effectiveness in the school system and deprived her pupils of a minimum educational experience. The proof is also uncontroverted that Cenal was repeatedly directed to improve her attendance, but failed to do so. Resolution of this case is, however, dependent on whether Cenal's absences were consistent with the terms of her contract of employment (approved). If consistent, she is entitled to employment protection, and the impact of her absences is not relevant. Article XIV of the contract between the School Board and the United Teachers of Dade, prescribes the leaves of absence available to teachers employed by the School Board, as well as the accrual and use of sick leave. If an employee's absence is in accordance with the provisions of this contract it is deemed approved, and their employment rights are protected. In the instant case Cenal avers that all her absences were approved. The School Board concedes that at no time was Cenal absent without approved leave and, notably, did not contest the propriety of a single absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Magda R. Cenal, be reinstated with back pay, and all other benefits to which she is rightfully entitled. DONE and ENTERED this 25th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4804 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not necessary to result reached. 3-6. Addressed in paragraph 2-4. 7-10. To the extent relevant, addressed in paragraph 2. Mr. Renuart's evaluation of Respondent during the 1978-79 school year and his recommendation that she be dismissed was not acted upon by the School Board. Other than her absence record, there is no competent proof that she suffered any deficiencies noted by Mr. Renuart in subsequent years. 11-17. Addressed in paragraphs 2-4. 18-19. Addressed in paragraph 2. 20-22. Not necessary to result reached. 23-24. Addressed in paragraph 2. 25. Not supported by competent proof. 26-32. Addressed in paragraph 2. 33. Not necessary to result reached. 34-37. To the extent relevant, addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 2. Not necessary to result reached. Also see paragraphs 1-4 of recommended order. Respondent's proposed findings of fact are addressed as follows: To the extent relevant, addressed in paragraph 1. Respondent's absenteeism is addressed in paragraph 2. The interrogatories filed in this case are not, however, probative since they were not introduced into evidence. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 3. Addressed in paragraph 2. Also see the address to petitioner's proposed findings of fact 7-10. COPIES FURNISHED: Johnny Brown, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 William DuFresne, Esquire 2929 Southwest Third Avenue Suite C Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132
Findings Of Fact Petitioner has employed respondent for many years. For the six years ending in 1968, she taught biology at Stranahan High School, where Harold Mouser was principal. Later, she left off teaching science and began working as a librarian, or media specialist. In this capacity, respondent worked at Parkway Junior High School, at Deerfield and at a facility called Southside which housed a center for emotionally disturbed children, when she began working there. Three or four years later, after the 1975-76 school year, the program for emotionally disturbed children was moved elsewhere, but respondent was allowed to remain with her library at Southside. Beginning in 1976, Southside was used for petitioner's Cyesis program, a program of instruction for pregnant school girls. At all pertinent times, Lorene Lasher was principal of the Cyesis program. The first year that the Cyesis center was located at Southside, Ms. Lasher directed respondent to teach a science class, in addition to performing her duties as a librarian. The following school year, 1977-1978, Ms. Lasher closed the library and turned it into a physical education room. She assigned respondent to teach science and mathematics classes, for the 1977-1978 and 1978- 1979 school years. Almost from the time the Cyesis program moved to South side, there was friction between respondent and Ms. Lasher. Things came to a head on October 17, 1978. That morning, shortly before school began, Ms. Lasher entered respondent's classroom. She placed some students' papers on respondent's desk, and demanded that respondent explain how she had marked the papers. Respondent, who was standing behind the desk, asked whether the complaining students had had permission to leave her classroom to speak to Ms. Lasher about the papers. During the heated argument that ensued, Ms. Lasher and respondent came closer together and respondent struck Ms. Lasher, breaking the skin above the lip. Ms. Lasher called out, "You hit me," and respondent replied, "You've been hitting me below the belt for two years," or words to that effect. Ms. Lasher summoned Charles Ramsdell, the guidance counselor, who, once inside respondent's classroom, asked her why she had hit Ms. Lasher. Respondent answered to the effect that Ms. Lasher had been hitting her daily, although not in a physical way. Students at the Cyesis Center in grades seven through twelve were grouped together in the same classes. Because of the students' various levels of achievement, individual folders were kept containing a program of instruction for each student. In addition, respondent and the other teachers at the Cyesis program prepared lesson plans for the class as a whole, for their own use and for the use of substitute teachers, if necessary. The first time Marilyn Shaw substituted for respondent she was unable to find respondent's lesson plans, for reasons which are not clear from the evidence. Respondent had prepared the lesson plans, which a fellow teacher had seen the day before. On subsequent occasions, Ms. Shaw had no difficulty finding respondent's lesson plans, which gave adequate guidance for a substitute teacher. Respondent regularly prepared satisfactory lesson plans while she was teaching at the Cyesis center. Except for wine infrequently, respondent refrains from drinking alcohol. She has never drunk any alcoholic beverages on school grounds, nor appeared in her classroom under the influence of alcohol or any other drug that affected her behavior. Before the media center at Southside was closed down, representatives of firms selling audiovisual materials called on respondent to show their wares. On one such occasion, Ms. Lasher learned that a salesman was with respondent and told respondent to bring the salesman to Ms. Lasher's office. Thereafter he went directly to Ms. Lasher's office whenever he visited Southside. A Mr. Lipane once dropped off some keys in the teacher's lounge for respondent after her car had been repaired. At the end of the school year he and other friends of respondent helped respondent pick up some things. By this time, students were no longer in attendance. Except for this occasion, respondent never invited any man to visit her at work. Sometimes petitioner's maintenance personnel worked at Southside. Respondent excused individual students from her class who needed to see the school nurse, the guidance counselor or some other school official. In keeping with school policy, respondent issued passes on these occasions. Also in keeping with school policy, respondent excused individual students who needed to go to the bathroom; a reusable pass was available to one student at a time for this purpose. Frequently, respondent sent a group of students into the hall just outside her classroom to do make-up work. She persisted in this practice even after Ms. Lasher had directed her to desist. From time to time respondent borrowed a master key from Ms. Lasher's office which she sometimes lent to other teachers before it was returned to Ms. Lasher's office. Respondent never returned a key other than the one she had borrowed. She never caused the master key to be duplicated or used it to enter the school at an unauthorized time. On or about June 17, 1977, Ms. Lasher and two other employees of petitioner entered respondent's office, after the end of the school year and found empty bottles that had once contained whiskey and wine. Respondent maintained a collection of bottles to which other teachers also contributed. The bottles were available for use by the art teacher. An art teacher once used bottles respondent had collected to make wind chimes. The 1977-1978 school year was the first year petitioner had had a homeroom for some time. She was unaware of petitioner's policy requiring that homeroom teachers distribute interim report cards on October 6, 1977, as a prerequisite to giving students failing grades for the semester; and she distributed none. She learned of this requirement at the end of that semester and complied with it thereafter. A schedule was posted in the school office, but it was not established that the schedule indicated when interim report cards were to be sent out. Every fifth week during the school year respondent had "bus duty." She failed to appear for bus duty on the afternoon of September 12, 1977. Instead she went to a workshop, for which she had obtained approval from Ms. Lasher beforehand. As soon as she arrived at the site of the workshop she telephoned Ms. Lasher's office and was told that somebody else was covering for her. On one other occasion, respondent was a few minutes late for bus duty because she was talking to a student. By the time she stopped by the office to get the clipboard all teachers used for bus duty, somebody else had been sent to supervise students awaiting school buses. At Ms. Lasher's instance, on October 12, 1978, Larry Wantuck, petitioner's math coordinator, met with respondent and Mr. Ramsdell, the Cyesis center's guidance counselor, to arrange for respondent to administer a "profile analysis" test to her students. Respondent was to administer the test over a four day period, and to grade the test papers afterwards with Mr. Ramsdell's assistance. She finished administering the tests on October 16, 1978. The following day, after her run in with Ms. Lasher, she was instructed to leave the school premises. When she left, she took the students' test papers with her to the office of the Classroom Teachers' Association. There she finished grading them on October 18, 1978. On October 19, 1978, she reported to petitioner's Lincoln Park Complex, as she had been directed to do. She left the test results in Mr. Wantuck's office, which was located at the Lincoln Park Complex, on October 19, 1978. On October 26, 1978, respondent happened to see Mr. Wantuck and asked him if he had found the test results she had left in his office. When he answered that he had not, they went together to his office and found them on his desk where respondent had left them. At the end of the 1977-1978 school year, respondent turned in her grade book and lesson plans for filing, in accordance with a school policy designed to make them available for reference to teachers in succeeding years. In the fall of 1978, she requested and obtained her 1977-1978 plan book, for which she signed a receipt. She gave the book to a fellow teacher who took it to the Classroom Teachers' association to be copied, in preparation for filing harassment charges against Ms. Lasher. Ms. Lasher asked respondent to return the plan book, and respondent did so a few days later, promptly after regaining possession of the book herself. After she had handed out alternating tests to seven students in her fifth period class, on or about October 12, 1978, respondent started out of her classroom headed for the bathroom. She had not shut the door behind her when Ms. Lasher ordered her to stay to supervise the students' test taking, which she did. At the beginning of each school year, many teachers at the Cyesis Center began recording grades elsewhere than in the official roll book because class composition was particularly unstable then. In the fall of 1978, respondent recorded grades, including grades for the student Cecil Hunter, on index cards. Even after she had entered Cecil Hunter's name in her official roll book and begun noting her attendance there, she did not immediately transfer from the card the grades she had recorded there. Occasionally respondent left her students unsupervised for a minute or two to go to the bathroom or to get a drink of water. If she was going to be gone longer, she would ask Ms. Bracewell or another colleague to look in on her students.
Recommendation Upon consideration of the foregoing, it is: RECOMMENDED: That petitioner suspend respondent for the remainder of the 1979-1980 school year. DONE and ENTERED this 26th day of September, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Warner S. Olds, Esq. Suite 200 3067 East Commercial Boulevard Fort Lauderdale, Florida 33308 John L. Chamblee, Jr., Esq. 341 Plant Avenue Tampa, Florida 33606
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, 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. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept 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 rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
The Issue Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on misconduct in office, which occurred on January 12, 1989. Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on gross insubordination or willful neglect of duty for failure to follow a prior directive from his principal not to physically touch a student, except under very limited conditions. Whether such actions of Respondent are so violative of the legitimate expectations of professional conduct of a teacher as to impair the effectiveness of service to the school district by the Respondent and to pose a serious danger to the continued safety, health and welfare of the students of Orange County, Florida.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a licensed teacher, having taught in the Orange County School System for 21 years and at Conway Middle School for over 19 years. Respondent's classroom evaluations over the years were satisfactory and higher. Respondent was a school representative for the teachers' association for approximately 16 years. Respondent is a large man, 6 feet, 3 inches tall and weighs 300 pounds. On January 12, 1989, Respondent was teaching his regular sixth-period American History class. The bell had rung, signaling the beginning of the class period, but some students were still coming into the classroom. The Respondent was preparing to show the class a filmstrip. Peyton Dickson, a student in the class, walked from his seat in the rear of the classroom to the light switch at the front of the classroom and turned the light switch on and off several times. Respondent told him to stop and to sit down. He remained standing and "talked back" to Respondent. Dickson's conduct angered the Respondent who then walked to where Dickson was standing, grabbed him by the arms and shoved him up against the wall. Respondent called Dickson a "punk." Dickson then angrily returned to his seat. Shortly thereafter, during the same class period, Todd Ray, another student in the class, walked over to use the pencil sharpener. On the way back to his seat, he stopped to help another student with a bookcover. The Respondent grabbed Ray, walked him a short distance back to the student's desk and pushed him down into his seat. The class continued without further interruption. The Respondent did not contact the school office concerning the incidents at the time that they occurred. After class was over, several students, including Peyton Dickson and Todd Ray, approached the school principal, Beth Provancha, in the hall and told her about the actions of the Respondent. Later that same day, the principal, through Mr. Nelms, directed the Respondent to prepare a written account of what had occurred in the classroom. The Respondent submitted his written version of the facts the next day, January 13, 1989. (School Board Exhibit 14). On January 29, 1989, the Respondent received a letter relieving him of duty effective January 30, 1989, because of "serious" allegations of misconduct. In the case of a student who disrupts a classroom, School Board policy directs that a student should be verbally directed by the teacher to cease disruptions. If that does not resolve the situation, the office should be "buzzed" and an administrative person summoned to remove the disruptive student from the classroom. It is not permissible for a teacher to physically abuse a student except in the case of an emergency, and no emergency existed in Respondent's classroom on January 12, 1989. Respondent had been directed by the principal, personally, as well as in the Faculty Handbook, not to physically touch students, except for friendly gestures or in emergencies. At the time of the January 1989 incidents, the Respondent knew he had been directed not to "touch" students. In spite of this knowledge, the Respondent deliberately grabbed and shoved or "touched" the two students who had been disruptive in class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County find Respondent guilty of misconduct in office, and not guilty of gross insubordination. It is FURTHER RECOMMENDED that Respondent be suspended, without pay, from the date of the incident January 12, 1989, until the end of the School Year 1988-89; and the Respondent receive counseling in stress management prior to returning to the classroom. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: Paragraphs 1,2,3,4 (in part), 5,6,7,8,9,10,11,12,13,14 (in part). Rejected: Paragraph 13 and a portion of 14 - not relevant. Respondent's Proposed Findings of Fact: In view of the fact that Respondent's proposals are not numbered, they will be referred to by page and paragraph number as they appear in the proposed finding starting on page 3 thereof. Accepted in substance: second full paragraph on page 3 Rejected as argument: first full paragraph on page 3 third full paragraph on page 5 second full paragraph on page 6 Rejected as not supported by the evidence: third full paragraph on page 3 (continuing on page 4) first full paragraph on page 4 (except the phrase: ... "and was aware of the previous reprimands at the time the Respondent sought to control the two students' actions.) second full paragraph on page 5 Rejected as a conclusion of law which is ruled on in the Preliminary Statement or Conclusions of Law section of this Recommended Order: second full paragraph on page 4 first full paragraph on page 5 fourth full paragraph on page 5 first full paragraph on page 6 fifth full paragraph on page 5 (concluding on page 6) APPENDIX The following constitute rulings on the findings of fact proposed by the parties. Petitioner's Findings of Fact Adopted in paragraph 1. Adopted in paragraphs 10 and 12. Adopted in part in paragraph 9, although the identification of the Respondent at the party is discredited as improbable. Rejected as unsubstantiated by the weight of evidence. Even if the smell had been marijuana smoke, it was not established that the odor existed prior to Respondent's departure the evening of the 18th, or that he could identify the odor as marijuana. Rejected as contrary to the evidence. Adopted in paragraph 18. Adopted in substance in paragraph 15. Rejected as contrary to the weight of evidence. & J. Rejected. The testimony of these witnesses was essentially credible. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rejected as immaterial. The conduct was not proven. Respondent's Findings of Fact Respondent's 18 numbered Findings of Fact include multiple sub- parts containing findings mixed with argument and summary of evidence. The findings of fact are generally adopted and are incorporated herein. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire William E. Curphey, Esquire Parker, Johnson, Owen, McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida Michael Barber, Esquire Post Office Box 1928 Kissimmee, Florida James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 N. Tampa Avenue Orlando, FL 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
