01-002482 Miami-Dade County School Board vs. Patrick E. Buday Status: Closed Recommended Order on Friday, November 16, 2001.

Summary: Respondent dismissed from employment after his driver`s license was revoked since possessing a driver`s license was a minimum qualification for his position of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2482

)

PATRICK E. BUDAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on September 20, 2001, in Miami,

Florida.

APPEARANCES

For Petitioner: Timothy A. Pease, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Courtney B. Wilson, Esquire

Shook, Hardy & Bacon, L.L.P.

Miami Center, Suite 2400

201 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue presented is whether Respondent Patrick E. Buday

is guilty of the allegations contained in the Notice of Specific

Charges filed against him, and, if so, what disciplinary acti on

should be taken against him, if any.

PRELIMINARY STATEMENT

By correspondence dated May 17, 2001, Petitioner Miami - Dade

County School Board advised Respondent Patrick E. Buday that his

employment by Petitioner was suspended and that dismissal

proceeding s were initiated effective at the close of the prior

workday. Respondent timely requested an evidentiary hearing

regarding that determination. This cause was thereafter

transferred to the Division of Administrative Hearings to

conduct the evidentiary pro ceeding.

Petitioner presented the testimony of Willie E. Spells,

Joanne Koski, and Virginia M. Bradford. Respondent testified on

his own behalf. Additionally, Petitioner's Exhibits numbered 1 -

27 were admitted in evidence.

Both parties submitted proposed recommended orders after

the conclusion of the final hearing. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed

by Petitioner as a Material Handler II a ssigned to one of

Petitioner's warehouses.

2. Under the collective bargaining agreement covering

Respondent's employment, unauthorized absences totaling ten or

more workdays during the previous twelve - month period constitute

evidence of excessive absente eism. Excessive absenteeism, in

turn, constitutes grounds for termination of employment.

3. On April 29, 1997, Respondent's supervisor held a

conference - for - the - record with Respondent to address

Respondent's excessive absences. At the time of the confer ence,

Respondent had accumulated eight and one - half days of

unauthorized absences during the preceding twelve - month period.

The conference resulted in a written warning that further

disciplinary action, including termination of employment, could

occur if Respondent's unauthorized absences totaled ten or more

in the previous twelve - month period.

4. In May 1997, after accumulating seven unauthorized

absences in the previous twelve - month period, Respondent was

again warned in writing that he could be terminated if he

accumulated ten or more unauthorized absences.

5. During a two - week pay period in June 1997, Respondent

was tardy four of the ten workdays. Respondent received a

written warning.

6. In July 1997, Respondent was again warned regarding his

excessive absenteeism after he had accumulated eight

unauthorized absences in the prior twelve - mo nth period.

7. In October 1998, Respondent accumulated ten and one -

half days of unauthorized absences, a number sufficient to

warrant his dismissal. Rather than terminating his employment,

however, Respondent's supervisor again warned Respondent in

writi ng about his excessive absenteeism.

8. Despite this written warning, Respondent, just six

months later, accumulated ten days of unauthorized absences as

of April 1999. Respondent was warned that he could be fired for

such excessive absences.

9. In an e ffort to assist Respondent in correcting his

deficiencies, Respondent's supervisor referred Respondent to the

School Board's Employee Assistance Program. Respondent,

however, declined to participate.

10. Nevertheless, Respondent continued to accumulate

u nauthorized absences. In November 1999, Respondent was warned

that he had accumulated nine and one - half days of unauthorized

absences.

11. In March 2000, after accumulating ten unauthorized

absences during the previous twelve - month period, Respondent was

again warned that he could be fired for excessive absences.

During the conference - for - the - record to address his unauthorized

absences, Respondent gave no explanation as to why he was

repeatedly absent without authorization.

12. After the conference, Res pondent was referred a second

time to the Employee Assistance Program due to his excessive

absenteeism. Respondent, however, failed to appear for his

scheduled appointment.

13. By June 2000, Respondent had again accumulated ten

unauthorized absences du ring the prior twelve - month period and

was warned that he could be terminated from employment on that

basis.

14. Thus, in the twenty - month period between October 1998

and June 2000, Respondent accumulated ten or more unauthorized

absences during the prior twelve - month period on four separate

occasions.

15. On August 31, 2000, Respondent lost his driver's

license as a result of driving while intoxicated. Even though

he knew he needed a driver's license for his job, Respondent did

not tell his supervisor t hat he no longer had a driver's

license. Respondent's supervisor only learned that Respondent

had lost his driver's license after a routine records check was

performed by the School Board's Office of Professional

Standards.

16. Under School Board Rule 6G x13 - 4A - 1.21, Respondent was

under an affirmative duty to report to his site supervisor that

he no longer had a driver's license.

17. On February 5, 2001, a Judgment was entered finding

Respondent guilty of driving under the influence and revoking

Responde nt's driver's license for ten years. Respondent signed

a copy of the Judgment indicating that he had received a copy

and that he understood its contents. That Judgment has not been

overturned, amended, or corrected.

18. On March 5, 2001, a conference - for - the - record was held

with Respondent by the Office of Professional Standards to

address the information regarding Respondent's driver's license

which Petitioner had obtained through its routine employee

records check. Following the conference, Respond ent's

supervisors recommended his dismissal from employment for

failure to maintain minimum job qualifications. On May 16, the

School Board suspended Respondent from his employment and

initiated this dismissal proceeding.

19. The minimum qualifications for a School Board employee

holding the position of Material Handler II, such as Respondent,

include possession of a valid Class D driver's license. The

license is required because materials and equipment must be

delivered all over the county. Material handlers are routinely

assigned to assist the regular drivers with deliveries and are

sometimes assigned to different warehouses than those to which

they are regularly assigned. Material handlers are called upon

to assist with driving duties on the averag e of three to four

times a week, and sometimes daily. The inability of material

handlers to drive can impact the School Board's ability to move

around employees and materials as needed to fulfill its mission.

20. Respondent knew he was required to have a nd maintain a

valid driver's license to be employed as a material handler.

21. Under the collective bargaining agreement, an employee

may be terminated from employment for failing to maintain

minimum job qualifications.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. Sections 120.569 and 120.57(1), Florida Statutes.

23. The Notice of Specific Charges filed in this cause

contains four counts. However, the School Board voluntarily

dismissed Count IV during the final hearing.

24. Count I alleges that Respondent's conduct constitutes

non - performance of his job responsibilities and/or deficient

performance and cites Article XI, Section 4.C, of the collective

b argaining agreement. That section merely defines the types of

separation, or termination of employment, that can occur. It

does not, in and of itself, give rise to a basis for terminating

Respondent's employment.

25. Count II of the Notice of Specific Charges alleges

that Respondent's excessive absenteeism warrants his dismissal.

While that may be true, the testimony is uncontroverted that

Respondent's superiors did not rely on Respondent's repeated

excessive absenteeism as the basis for recommending to the

School Board that Respondent's employment be terminated.

Rather, the uncontroverted testimony is that Respondent's

superiors relied solely on Respondent's failure to maintain

minimum qualifications in their recommendations that he be

dismissed. Fu rther, the School Board's letter to Respondent

notifying him that he was suspended from his employment and that

dismissal proceedings were being initiated against him, although

mentioning several bases for that action, does not include

Respondent's excessi ve absenteeism as a basis.

26. Count III alleges that Respondent violated School

Board Rule 6Gx13 - 4A - 1.21, which requires employees to conduct

themselves in such a manner as to reflect credit upon themselves

and the school system. Subsection VI of that Rule applies to

non - instructional personnel such as Respondent and provides as

follows:

Members of the non - instructional staff shall

maintain all certifications, licenses and

job requirements as a condition of

employment. Failure to do so shall warra nt

disciplinary action up to and including

dismissal from all employment.

Any loss of certification, license or other

job requirement shall immediately be

reported by the non - instructional staff

member to his/her site supervisor. Failure

to do so shall c onstitute a violation of

this rule.

27. The School Board has met its burden of proof to show

that Respondent's driver's license was suspended and then

revoked; that a driver's license is a minimum qualification for

the position of Material Handler II; th at Respondent,

accordingly, failed to maintain a license required as a

condition of employment, and that Respondent failed to report

his loss of license to his site supervisor. The School Board

has, accordingly, proven that Respondent violated Rule 6Gx13 - 4A -

1.21, and the Rule provides that disciplinary action up to

dismissal is warranted. The School Board has properly exercised

its authority to dismiss Respondent from his employment.

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

28. Respondent argues that e ven though a driver's license

is a condition for his employment, that it should not be. He

reasons that since there are others employed as material

handlers who have driver's licenses, they can be called upon

when the need for a driver arises. Although R espondent does not

think a driver's license is an important condition for his

position of employment, that determination is not Respondent's

to make. Respondent's job description clearly sets forth that

the possession of a driver's license is required, an d Respondent

does not have one.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered dismissing Counts

I and II of the Notice of Specific Charges, finding Respondent

guilty of the allegations in Count III of the Notice of Specific

Charges, ratifying his suspension without pay, and terminating

his employment by the Miami - Dade County School Board.

DONE AND ENTERED this 16th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2001.

COPIES FURNISHED:

Roger C. Cuevas, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0 400

Timothy A. Pease, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Courtney B. Wilson, Esquire

Shook, Hardy & Bacon, L.L.P.

Miami Center, Suite 2400

201 South Biscayne Boulevard

Miami, Florida 33131

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

wil l issue the Final Order in this case.