08-004726TTS Sarasota County School Board vs. Virgil Mae Status: Closed Recommended Order on Wednesday, December 24, 2008.

Summary: Respondent abandoned his job and failed to meet the requirements for employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4726

)

VIRGIL MAE, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 6, 2008, an administrative hearing in this case

was held in Sarasota, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

For Respondent: Virgil Mae, pro se

1575 20th Street

Sarasota, Florida 34234

STATEMENT OF THE ISSUE

The issue in the case is whether the Sarasota County School

Board (Petitioner) has cause for terminating the employment of

Virgil Mae (Respondent).

PRELIMINARY STATEMENT

By letter dated August 25, 2008, the Petitioner notified

the Respondent that the Petitioner intended to terminate the

Respondent's employment. The Respondent filed a request for

hearing. The Petitioner forwarded the request to the Division

of Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1, 2, 4, 5, and 6

admitted into evidence. The Respondent testified on his own

behalf.

A Transcript of the hearing was filed on November 19, 2008.

The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

employed by the Petitioner as a school bus driver.

2. The Respondent was subject to the provisions for

"classified" employees as identified in the Collective

Bargaining Agreement (CBA) between the Petitioner and the

"Sarasota Classified/Teachers Association."

3. Under the terms of the CBA, the Petitioner's school bus

drivers must comply with various requirements including:

possession of a commercial driver's license (CDL) and automobile

insurance, passage of an annual health physical, passage of a

"reflex" or dexterity test, and completion of in-service

training.

4. In May of each year, the Petitioner makes physicians

available to provide health physicals for school bus drivers at

no charge. In the alternative, the Petitioner pays the

insurance co-payment for drivers who choose to obtain physicals

from their personal physicians.

5. School board policy requires that the reflex test be

conducted within 30 days of the physical. Accordingly, the

Petitioner provides reflex testing in May, so that it may be

completed in conjunction with physicals. The reflex testing is

also at the Petitioner's expense.

6. Prior to May of each year, the Petitioner posts flyers

at the school bus compounds to remind bus drivers of the

requirements and advise of the dates of the tests. The

Transportation Department also broadcasts the information

through a radio dispatch system that provides communications

links to all drivers. Written notices are also sent to the

drivers.

7. Most drivers complete both tests during May, but

drivers may complete the tests in their own time. If a driver

chooses to obtain a physical through a private physician, the

Transportation Department will schedule the reflex test to

accommodate the driver's physical, so that both are completed

within 30 days.

8. The Respondent asserted that he was unaware of the

requirement that the reflex test be conducted within 30 days of

the physical, but the greater weight of the evidence establishes

that he has been a bus driver for the Petitioner since

October 2003, that he has complied with the annual requirement

in previous years, and that the policy has not changed during

the term of his employment.

9. The evidence further establishes that the Respondent

had not completed the physical even by the time of the

administrative hearing.

10. Each fall, during the week preceding the commencement

of school, the Petitioner's Transportation Department conducts a

"Safety School," during which the school bus drivers receive in-

service training sufficient to meet the relevant requirements

applicable to drivers.

11. School bus drivers are paid their regular wages to

attend Safety School.

12. On the second day of Safety School, the Petitioner

conducts a "bid day," through which drivers bid on routes based

on their employment seniority.

13. Under the terms of the CBA, school bus drivers must

have the valid CDL and have completed the health physical and

in-service training no later than the time of the initial bid.

14. Article XXI, Section M, of the CBA provides as

follows:

An employee who fails to return to duty for

each of the first three work days of a new

school year and who fails to notify his/her

cost center head of his/her intentions will

be considered to have abandoned his/her job

and may be terminated.

15. At the hearing, the Respondent asserted that he did

not return to work because he believed his insurance had lapsed

and that his driver's license was suspended and that he was

trying to resolve the matter so that he could return to work.

He further asserted that he contacted his supervisor and advised

him of the matter, by leaving the information with the

receptionist who answered the calls.

16. At the hearing, the receptionist acknowledged that the

Respondent had called, but stated that he declined to leave a

message or a telephone number to which the supervisor could have

returned the calls. She testified that according to the "Caller

ID" telephone number information, the Respondent was calling

from a storage company.

17. The evidence establishes that the Respondent did not

appear for the first three work days of the 2008-2009 school

year and, in fact, was absent through the first eight days of

the school year, extending over a two-week period. The

Respondent's explanation for his failure to return to work lacks

sufficient credibility and is rejected.

18. Additionally, the evidence establishes that the

Respondent failed to obtain the required annual health physical

or to complete the in-service training prior to bid day and,

accordingly, was not in compliance with the requirements of the

CBA.

19. During his employment by the Petitioner, the

Respondent has been cited for excessive absences on several

occasions. At the hearing, the Respondent asserted that the

absences were related to health matters. The evidence

establishes that the Respondent failed to supply medical

documentation for some of the absences, and they were deemed to

be "unexcused."

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

21. The Petitioner has the burden of establishing the

facts of the case by a preponderance of the evidence sufficient

to warrant termination of the Respondent's employment. McNeill

v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA

1996); Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3d DCA 1990). In this case, the burden has been met.

22. Section 1012.67, Florida Statutes (2008), provides as

follows:

Absence without leave. 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 district school board.

23. Article XXI, Section M, of the CBA provides as

follows:

An employee who fails to return to duty for

each of the first three work days of a new

school year and who fails to notify his/her

cost center head of his/her intentions will

be considered to have abandoned his/her job

and may be terminated.

24. In this case, the Respondent failed to return to duty

on a timely basis or to provide notice of his intentions to the

head of the Petitioner's Transportation Department.

25. Subsection 1012.45(1), Florida Statutes (2008),

provides as follows:

Each school bus driver must be of good moral

character, of good vision and hearing, able-

bodied, free from communicable disease,

mentally alert, and sufficiently strong

physically to handle the bus with ease, and

he or she must possess other qualifications

prescribed by the Commissioner of Education,

including those qualifications described in

49 C.F.R. s. 391, relating to physical

qualifications and examinations, and

49 C.F.R. part 40 and part 382, relating to

controlled substance and alcohol use and

testing, and he or she must hold a valid

commercial driver's license with a passenger

endorsement.

26. The Code of Federal Regulation (C.F.R.) references

identified in the statute are those related to the completion of

health physicals restated within the CBA.

27. Subsection 316.15(3), Florida Statutes (2008),

provides as follows:

A person may not operate or cause to be

operated a motor vehicle covered by

subsection (1) or subsection (2) when

transporting school children unless the

operator has met the physical examination

requirements established by law and by rule

of the State Board of Education. The

operator of such a motor vehicle shall pass

an annual physical examination and have

posted in the vehicle a certificate to drive

the vehicle.

28. Florida Administrative Code Rule 6A-3.0141 sets forth

the annual physical examination requirements applicable to

school bus drivers.

29. The evidence establishes that, in addition to the

Respondent's failure to appear for employment at the beginning

of the school year, the Respondent failed to meet the physical

examination requirements prior to commencement of the 2008-2009

school year and, accordingly, was not eligible for employment as

a school bus driver. The failure of the Respondent to complete

the physical was not related to any issue regarding lack of

insurance or driver's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a final order

terminating the employment of Virgil Mae.

DONE AND ENTERED this 24th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of December, 2008.

COPIES FURNISHED :

Virgil Mae

1575 20th Street

Sarasota, Florida 34234

Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

Mrs. Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3365

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.