01-002414 Miami-Dade County School Board vs. Lidia Ann Gonzalez Status: Closed Recommended Order on Thursday, March 28, 2002.

Summary: School Board could properly terminate employment of school bus driver who had extensive absenteeism history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 24 14

)

LIDIA ANN GONZALEZ, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

in Miami, Florida, on October 25, 2001, before Michael M.

Parrish, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd S treet, Suite 224

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent's

employment by the School Board of Miami - Dade County, Florida,

should be terminated.

PRELIMINARY STATEMENT

On May 16, 2001, the Petitioner, School Board of Miami - Dade

County, Florida, took action to suspend without pay and to

initiate dismissal proceedings against the Respondent, Lidia Ann

Gonzalez. Following a timely request for hearing, this case was

forwarded to the D ivision of Administrative Hearings for formal

proceedings and the case was assigned to an Administrative Law

Judge for hearing.

On June 30, 2001, the Petitioner served its Notice of

Specific Charges. In its Notice of Specific Charges, the

Petitioner raise d four grounds for termination: (1) excessive

absenteeism and abandonment of position; (2) deficient or non -

performance of job responsibilities; (3) misconduct in office;

and (4) violation of School Board Rule 6Gx13 - 4A - 1.21

(prohibiting conduct unbecoming a School Board employee).

At the hearing, the Respondent admitted the allegations in

paragraphs 1 - 4, 6 - 14, 16 - 17, 19, and 22 of the Notice of

Specific Charges. The Petitioner presented the testimony of

three witnesses: Randy Mazie, Susan Lilly, and Fred Conde. The

Petitioner's Exhibits numbered 3 and 7 - 22 were offered and

received in evidence. The Respondent testified on her own

behalf, but did not call any additional witnesses. The

Respondent’s Exhibits numbered 1 - 2 were offered and received in

evide nce.

At the conclusion of the hearing, the parties requested and

were granted, twenty days from the filing of the transcript

within which to file their proposed recommended orders. The

transcript was filed with the Division of Administrative

Hearings on J anuary 24, 2002. 1 Thereafter, both parties filed

timely Proposed Recommended Orders containing proposed findings

of fact and conclusions of law. 2

FINDINGS OF FACT

1. At all times material hereto, the Respondent was

employed by the Petitioner as a bus dr iver and was assigned to

Central East Regional Transportation Center (Central East),

which is within the school district of Miami - Dade County. The

Respondent is a member of the American Federation of State,

County, and Municipal Employees, Local 1184 (AFS CME) bargaining

unit.

2. At all times material, Randy Mazie (Mazie) was the

Director of Central East. Juan Perez was the Coordinator of

Central East (reporting to Mazie), and Frank Hernandez and

Florence Birch were Administrative Assistants (reporting to

Perez and Mazie).

3. When a bus driver is absent without advance notice, it

often has a substantial impact on the work site. Absenteeism of

bus drivers causes delays on that particular route and typically

puts stress on both students and school site e mployees.

4. On a number of occasions, Mazie personally had

conversations with the Respondent about her poor attendance

record and the consequences of her absenteeism. In addition,

employees, including the Respondent, received training about

attendance p olicies and procedures.

5. In March 2000, the Respondent was referred to the

Employee Assistance Program. On April 28, 2000, the Petitioner

received notification that the Respondent declined to

participate in the Employee Assistance Program.

6. The P etitioner accommodated the Respondent by approving

leaves of absence for the Respondent during the following time -

frames: January 21, 1998, through April 1, 1998; April 2, 1998,

through April 1, 1999; November 29, 1999, through January 2,

2000; January 3, 2000, through January 31, 2000; and

February 25, 2000, through March 3, 2000.

7. On November 19, 1999, School Board administrators held

a conference with the Respondent to address the Respondent’s

excessive absenteeism. At the conference the Respondent was

advised that she had been absent a total of 52.5 days since

April 1999, including 18 days of unauthorized absences. In

addition, the Respondent was advised that continued absenteeism

would result in a second conference. At the conference, the

Respond ent was asked if there were any mitigating circumstances

for her absences. The Respondent did not provide any

explanation for her unauthorized absences. Shortly thereafter,

the Respondent received a written summary of the conference.

8. On March 2, 20 00, School Board administrators held a

second conference with the Respondent to address the

Respondent’s continued excessive absenteeism. At the

conference, the Respondent was advised that she had been absent

without authorization for 6.5 days since the f irst conference.

In addition, the Respondent was advised that she had been absent

a total of 74 days during the past 12 - month period, including

24.5 days of unauthorized absences. The Respondent was

instructed that continued absenteeism would result in a third

and final conference, which could result in termination of her

employment. At the second conference, the Respondent was asked

if there were any mitigating circumstances for her absences.

The Respondent did not provide any explanation for her

unaut horized absences. Shortly thereafter, the Respondent

received a written summary of the second conference.

9. On May 31, 2000, School Board administrators sent a

memorandum to the Respondent regarding the Respondent’s

continued absenteeism. In the memor andum, the Respondent was

directed to report to duty daily, as all of her leave time had

been exhausted. The Respondent refused to sign a copy of the

memorandum.

10. Notwithstanding the above directive, the Respondent’s

excessive absenteeism continued. From November 30, 2000, to

December 19, 2000, the Respondent was absent from work. On

January 4, 2001, the Respondent presented the School Board

Administrators with a medical document signed by the

Respondent’s physician purporting to excuse the Responde nt from

work from November 27, 2000, through January 3, 2001. On

January 6, 2001, the School Board Administrators discovered that

the Respondent’s physician did not excuse the Respondent from

work from November 27, 2000, through January 3, 2001, and that

the medical document provided by the Respondent had been

falsified.

11. On January 22, 2001, School Board administrators held

a third conference with the Respondent to address the

Respondent’s continued excessive absenteeism and submission of

fraudulent medical documentation. At the conference, the

administrators advised the Respondent that she had been absent a

total of 38 days during the past 12 - month period. The

Respondent was also informed that, since March 2000, she had

been absent without authori zation for 18 days.

12. At the conference, the Respondent was afforded an

opportunity to refute the charges that she had submitted

fraudulent medical documentation. Despite this opportunity, the

Respondent did not refute the charges or provide an explan ation.

Thereafter, the Respondent received a written summary of the

conference; however, the Respondent refused to sign the summary.

13. On February 22, 2001, the Office of Professional

Standards held a conference with the Respondent to address the

Res pondent’s excessive absenteeism and submission of fraudulent

medical documentation. At the conference, the Respondent was

afforded an opportunity to refute the charges that she had

submitted fraudulent medical documentation. Despite this

opportunity, the Respondent did not refute the charges or

provide an explanation. The Respondent received a written

summary of the conference.

14. During the hearing, the Respondent testified that she

went to the emergency room (but was not admitted to the

hospital) du ring the time - frame from November 30, 2000, through

December 19, 2000. The emergency room personnel told her to

follow up with her physician. Notwithstanding these directions,

the Respondent admitted that she failed to follow up with her

physician. Duri ng the time - frame from November 30, 2000,

through December 19, 2000, School Board administrators directed

the Respondent to submit documents indicating that she was under

medical care. Thereafter, the Respondent falsified the medical

note.

15. The Resp ondent also generally testified during the

hearing that she was undergoing counseling by a social worker

for stress related to her personal life. However, the

Respondent never offered as evidence any records from the social

worker, and Mazie testified tha t she never had a conversation

with him about meeting with a social worker. Moreover, the

Respondent admitted that the School Board Administrators

authorized absences related to her daughter’s pregnancy/illness,

as well as housing problems she encountered during a storm. In

addition, the Respondent conceded that the School Board never

denied the Respondent a requested leave of absence.

16. Between April 1, 1999, and November 19, 1999, the

Respondent was absent without authorization for 20.5 days.

During that same time - frame, the Respondent was absent with

authorization (and without pay) for 20 days.

17. Between November 19, 1999, and March 2, 2000, the

Respondent was absent without authorization for 8.5 days.

18. Between March 3, 1999, and March 2, 2 000, the

Respondent was absent without authorization for 28.5 days.

During that same time - frame, the Respondent was absent with

authorization (and without pay) for 51 days.

19. Between January 23, 2000, and January 22, 2001, the

Respondent was absent wit hout authorization for 22 days. During

that same time - frame, the Respondent was absent with

authorization (and without pay) for 12 days.

20. Between March 3, 2000, and March 3, 2001, the

Respondent was absent without authorization for 21 days. During

th at same time - frame, the Respondent was absent with

authorization (and without pay) for 8 days.

21. Between November 30, 2000, and December 19, 2000, the

Respondent was absent without authorization for 14 consecutive

days.

22. Based on the Respondent’s l eave history records, she

was absent without authorization, between March 3, 2000, and

March 3, 2001, as follows: March 10, 2000 (½ day); April 10,

2000 (½ day); April 13, 2000 (½ day); May 30, 2000 (½ day); May

31, 2000 (½ day); June 2, 2000 (½ day); Jul y 18, 2000 (½ day);

July 21, 2000 (½ day); November 30, 2000 (1 day); December 1,

2000 (1 day); December 4, 2000 (1 day); December 5, 2000 (1

day); December 6, 2000 (1 day); December 7, 2000 (1 day);

December 8, 2000 (1 day); December 11, 2000 (1 day); Dec ember

12, 2000 (1 day); December 13, 2000 (1 day); December 14, 2000

(1 day); December 15, 2000 (1 day); December 18, 2000 (1 day);

December 19, 2000 (1 day); January 10, 2001 (½ day); January

11, 2001 (½ day); February 15, 2001 (1 day); February 22, 2001

(½ day); and February 27, 2001 (½ day).

23. As a result of the Respondent's conduct, School Board

administrators recommended dismissal of the Respondent.

Thereafter, the Petitioner suspended the Respondent without pay

and initiated these dismissal proce edings.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See Sections 120.569, 120.57(1), and

231.29(3)(d)3.b, Florida Statutes (1999).

25. At all times pertin ent to this proceeding, the

Petitioner was a duly - constituted School Board charged with the

duty to operate, control, and supervise all free public

education within the school district of Miami - Dade County,

Florida. See Section 4(b) of Article XI of the C onstitution of

the State of Florida, and Section 230.03, Florida Statutes.

26. The Petitioner has the burden of proving just cause by

a preponderance of the evidence. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 1996); Dileo v. School Board

of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990). However, the

burden of proving affirmative defenses falls on Respondent. See

Department of Business & Professional Regulation v. Verzura ,

Case No. 98 - 3606 (DOAH 1999); Department of Environmental

Regulation v. McSheehy , Case No. 91 - 7281 (DOAH 1993); see also

Florida Dep’t of Health and Rehab. Servs. v. Career Serv.

Comm’n , 289 So. 2d 412, 414 (Fla. 4th DCA 1974) (holding that

burden of proof is on the party asserting the affirmative of an

issue b efore an administrative tribunal).

27. Section 230.23(5)(f), Florida Statutes (1999),

provides, in pertinent part, that a school board may:

Suspend, dismiss, or return to annual

contract members of the instructional staff

and other school employees[.]

28. Section 231.001, Florida Statutes (1999), provides the

School Board with the authority to issue policies relating to

personnel matters and states that:

Except as otherwise provided by law or the

State Constitution, district school boards

are authorize d to prescribe rules governing

personnel matters, including the assignment

of duties and responsibilities for all

district employees.

29. Section 447.209, Florida Statutes, provides that it is

the right of public employers to "direct its employees, take

disciplinary action for proper cause, and relieve its employees

from duty because of lack of work or other legitimate reasons."

30. The Respondent is a non - probationary “educational

support employee” within the meaning of Section 231.3605,

Florida Statute s, which provides:

(1) As used in this section:

(a) “Educational support employee” means

any person employed by a district school

system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Dep artment of Education or district

school board pursuant to s. 231.1725. . . .

(b) “Employee” means any person employed

as an educational support employee.

(c) “Superintendent” means the

superintendent of schools or his or her

designee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district s chool board rule in cases where a

collective bargaining agreement does not

exist . . .

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receiv e

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining ag reement.

31. The Respondent is a member of the AFCSME Local 1184.

AFSCME and the Petitioner have entered into a Collective

Bargaining Agreement (AFSCME Contract) that includes provisions

for the discipline of its members.

32. Article II, section 3, of the AFSCME Contract

provides:

It is understood and agreed that

management possesses the sole right, duty,

and responsibility for operation of the

schools and that all management rights

repose in it, but that such rights must be

exercised consistently wit h the other

provisions of this agreement. These rights

include, but are not limited to, the

following:

A. Discipline or discharge of any

employee for just cause ;

(Emphasis added.) Thus, the School Board has the right to

discharge for just cause.

33. Article XI, Section 1, of the AFSCME Contract provides

due process rights to employees, and states:

Progressive discipline steps should be

followed, however, in administering

discipline, the degree of discipline shall

be reasonably related to the serious ness of

the offense and the employee’s record .

Therefore, disciplinary steps may include:

1. Verbal warning;

2. Written warning (acknowledge);

3. Letter of reprimand;

4. Suspension/demotion; and

5. Dismissal.

(Emphasis added.)

34. Article XI, Se ction 1, of the AFSCME Contract further

provides: “[I]t is agreed that disciplinary actions taken

against AFCSME, Local 1184 bargaining unit members shall be

consistent with the concept and practice of progressive or

corrective discipline and that in all instances the degree of

discipline shall be reasonably related to the seriousness of the

offense and the employee’s record .” (Emphasis added.)

35. Based on the foregoing language of Article XI of the

AFSCME Contract, the employee’s record must be conside red in

determining the degree of discipline. Furthermore, the

disciplinary steps enumerated are permissive , not mandatory.

36. Article XI, Section 4, of the AFSCME Contract

delineates the distinct types of separation: (A) voluntary; (B)

excessive absente eism/abandonment of position; (C) disciplinary ;

and (D) non - reappointment.

37. Article XI, Section 4B, of the AFSCME Contract,

concerning excessive absenteeism/abandonment of position,

provides, in pertinent part:

An unauthorized absence for three

consec utive 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 terminati on.

(Emphasis added.) The foregoing provision expressly provides

that excessive absenteeism and abandonment of position alone

constitute grounds for termination. Thus, the concept of

progressive discipline does not apply to discharge for excessive

absen teeism and abandonment of position.

38. School Board Rule 6Gx13 - 4E - 1.01 provides, in pertinent

part: “Except for sudden illness or emergency situations, any

employee who is absent without prior approval shall be deemed to

be willfully absent without leav e.”

39. Section 231.44, Florida Statutes, provides:

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.

40. The evidence in this case is sufficient to establish

that the Respondent’s conduct constitutes excessive absenteeism

and abandonment of position. The Respondent’s conduct

constitutes just cause for her suspension and dismissa l pursuant

to Sections 230.03(2), 230.23(5)(f), 447.209, 231.3605, Florida

Statutes, and Articles II and XI of the AFSCME Contract.

41. Article XI, Section 4C, of the AFSCME Contract,

provides for the dissolution of the employment relationship

between an employee and the School Board as follows:

C. 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.

42. The evidence in this case is sufficient to establish

that the Respondent’s conduct constitutes deficient performance

and/or non - performance of her job responsibilities. The

Respondent’s conduct constitutes just cause for the Respondent’s

susp ension and dismissal pursuant to Sections 230.03(2),

230.23(5)(f), 447.209, 231.3605, Florida Statutes, and Articles

II and XI of the AFSCME Contract.

43. The evidence in this case is sufficient to establish

that the Respondent tendered a falsified medica l note to the

Petitioner in order to obtain authorization for her absence from

the workplace. The Respondent’s conduct in this regard

constitutes misconduct in office, and, accordingly, constitutes

just cause for Respondent’s suspension and dismissal purs uant to

Sections 230.03(2), 230.23(5)(f), 447.209, 231.3605, Florida

Statutes, and Articles II and XI of the AFSCME Contract.

44. School Board Rule 6Gx13 - 4A - 1.21 , provides in relevant

part:

All persons employed by The School Board of

Miami - Da de County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system .

U nseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited. (Emphasis added.)

45. The Respondent’s conduct of submitting falsified

records and being excessively absent from the workplace,

constitutes conduct w hich failed to bring credit upon herself or

the school system and is thereby conduct that is not in

conformance with School Board Rule 6Gx13 - 4A - 1.21 . Such actions

fall within the definition of “unseemly conduct” or “conduct

unbecoming,” and, accordingly, constitute just cause for

Respondent’s suspension and dismissal from employment pursuant

to Sections 230.03(2), 230.23(5)(f), 447.209, 231.3605, Florida

Statutes, and Articles II and XI of the AFSCME Contract.

46. Finally, the Respondent argued as an affi rmative

defense that she was receiving counseling from a social worker

related to stress. This affirmative defense is insufficient to

excuse the Respondent from the consequences of her absences and

other misconduct. See Palm Beach County School Board v.

Auerbach , Case No. 96 - 3683, paragraph 32 (DOAH 1997)

(recommending upholding dismissal for excessive absenteeism,

notwithstanding employee’s argument that his absences were

caused by stress, anxiety attacks, headaches, and lower back

pain).

RECOMMENDATION

On the basis of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that a final order be

entered terminating the Respondent's employment and denying all

other relief sought by the Respondent.

DONE AND ENTERED this 28th day of March , 2002, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division o f 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 28th day of March, 2002.

ENDNOTES

1/ The court reporter did not explain why it took ninety days to

prepare the transcript in this case.

2/ The parties' Proposed Recommended Orders have been carefully

considered during the preparation of thi s Recommended Order.

COPIES FURNISHED:

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

Miami, Florida 33128

John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 3 3132

Merrett R. Stierheim, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

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.