01-003514 Miami-Dade County School Board vs. Linda Hogans Status: Closed Recommended Order on Thursday, May 16, 2002.

Summary: School Board justified in terminating bus driver under collective bargaining agreement for excessive absenteeism and abandonment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3514

)

LINDA HOGANS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.57(1), Florida Statutes, on December 21,

2001, by video teleconference at sites in Miami and Tallahassee,

Florida, before Stuart M. Lerner, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPE ARANCES

For Petitioner: John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

Miami, Florida 33034

STATEMENT OF THE ISSUES

1. Whether Respondent engaged in the conduct alleged in

the Notice of Specific Charges.

2. If so, what action, if any, shou ld be taken against

Respondent.

PRELIMINARY STATEMENT

On August 22, 2001, the School Board of Miami - Dade County

(School Board) suspended Respondent from her position as a

school bus driver and initiated a dismissal proceeding against

her. By letter dated September 5, 2001, Respondent advised the

School Board that she "wish[ed] to appeal the decision made

against [her]." On September 6, 2001, the matter was referred

to the Division of Administrative Hearings (Division) for the

assignment of a Division Adm inistrative Law Judge.

On or about October 22, 2001, the School Board served on

Respondent (by United States Certified Mail) its Notice of

Specific Charges (Notice). The Notice alleged that, "[d]uring

the 12 - month period between June 1, 2000, and June 1, 2001,

Respondent ha[d] been absent without authorization in excess of

10 days" and "ha[d] been absent three or more consecutive days

without authorization." According to the Notice, Respondent's

conduct "constitute[d] excessive absenteeism and abandonment of

position" (Count I); "constitute[d] deficient performance and/or

non - performance of her job responsibilities" (Count II); and was

in violation of School Board Rule 6Gx13 - 4A - 1.21 ,

Responsibilities and Duties (Count III); and therefore there was

"just ca use for Respondent's suspension 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." The

Notice further alleged that Respondent had received prior

warnings "concer ning her accrual of unauthorized leave" on or

about February 21, 2000, and again on May 3, 2000, and that

Conferences - for - the - Record were held with Respondent to address

her "excessive absenteeism" in March of 1999, and on December 1,

1999, July 21, 2000, February 1, 2001, March 29, 2001, and

June 7, 2001.

As noted above, the final hearing in this case was held

before the undersigned on December 21, 2001. Nine witnesses

testified at the final hearing: Cecelia Romero, Celeste

McKenzie, Roger Cabrera, Susa n Lilly, Aned Lamboglia - Candales,

Mary Murphy, Barbara Moss, Shinita Collier, and Respondent. In

addition to the testimony of these nine witnesses, 27 exhibits

(Petitioner's Exhibits 2 through 21, and Respondent's Exhibits 1

through 7) were offered and re ceived into evidence.

At the close of the evidentiary portion of the final

hearing on December 21, 2001, the parties were advised of their

right to file proposed recommended orders and a deadline was

established (15 days from the date of the Division's re ceipt of

the transcript of the final hearing) for the filing of proposed

recommended orders.

On January 11, 2002, the parties filed a Stipulation, which

provided as follows:

The parties agree that Respondent was not at

work as follows and that Petitioner

designated Respondent as having be[en]

absent without authorization as follows:

10/27/00 - 1/2 day

11/17/00 - 1/2 day

11/30/00 - 1/2 day

12/8/00 - 1/2 day

12/14/00 - 1/2 day

12/19/00 - 1/2 day

1/4/01 - 1/2 day

1/10/01 - 1/2 day

1/11/01 - 1/2 day

2/8/01 - 1 day

2/9/01 - 1 day

2/13/01 - 1/2 day

2/14/01 - 1/2 day

3/21/01 - 1 day

3/22/01 - 1 day

3/23/01 - 1 day

3/26/01 - 1 day

4/23/01 - 1 day

4/26/01 - 1/2 day

4/30/01 - 1/2 day

5/7/01 - 1 day

5/9/01 - 1/2 day

5/11/01 - 1/2 day

5/15/01 - 1/2 day

5/16/01 - 1/2 day

5/17/01 - 1/2 day

5/22/01 - 1/2 day

5/23/01 - 1 day

5/24/01 - 1 day

The Division received the Transcript of the final hearing

(consisting of two volumes) on April 2, 2002. On April 19,

200 2, Respondent filed an unopposed motion requesting an

extension of the deadline for filing proposed recommended

orders. Good cause having been shown, the undersigned, on

April 23, 2002, issued an Order extending the deadline for the

filing of proposed re commended orders to April 29, 2002. On

April 29, 2002, and April 30, 2002, respectively, the School

Board and Respondent filed their Proposed Recommended Orders.

These Proposed Recommended Orders have been carefully considered

by the undersigned.

FINDING S OF FACT

Based upon the evidence adduced at hearing, and the record

as a whole, the following findings of fact are made are made to

supplement and clarify the stipulations of fact set forth in the

parties' January 11, 2002, Stipulation:

The Parties

The Sc hool Board

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) in Dade County, Florida.

Respondent

2. Respondent has been employed by the School Board since

October of 1992.

3. She is currently under suspension pending the outcome

of this disciplinary proceeding.

4. Respondent was initially employed as a substitute bus

driver.

5. Since March of 1993, she has held a regular school bus

driver position.

6. At all times material to the instant case, Respondent

was assigned to the School Board's Southwest Transportation

Center (Center). Mary Murphy has been the director of the

Center for the past seven years. Since August of 1999, Aned

Lamboglia - Candales has been the Center's coord inator. As such,

she "monitor[s] all attendance at the [C]enter" and assists Ms.

Murphy in dealing with personnel problems at the Center.

7. At all times material to the instant case, Respondent

was scheduled to work a total of six hours a day: three h ours

in the morning (morning shift) and three hours in the afternoon

(afternoon shift). (In between the morning and afternoon

shifts, she was off duty for several hours.)

The Collective Bargaining Agreement

8. As a school bus driver employed by the Schoo l Board,

Respondent is a member of a collective bargaining unit

represented by the American Federation of State, County, and

Municipal Employees, Local 1184 (AFSCME) and covered by a

collective bargaining agreement between the School Board and

AFSCME (AFSC ME Contract).

9. Article II, Section 3., of the AFSCME Contract

provides, in pertinent part, as follows:

ARTICLE II - RECOGNITION

SECTION 3. The provisions of this Contract

are not to be interpreted in any way or

manner to change, amend, modify, or in a ny

other way delimit the exclusive authority of

the School Board and the Superintendent for

the management of the total school system

and any part of the school system. It is

expressly understood and agreed that all

rights and responsibilities of the Scho ol

Board and Superintendent, as established now

and through subsequent amendment or revision

by constitutional provision, state and

federal statutes, state regulations, and

School Board Rules, shall continue to be

exercised exclusively by the School Board

and the Superintendent without prior notice

or negotiations with AFSCME, Local 1184,

except as specifically and explicitly

provided for by the stated terms of this

Contract. Such rights thus reserved

exclusively to the School Board and the

Superintendent, by way of limitation,

include the following: . . .

(2) separation, suspension, dismissal, and

termination of employees for just

cause; . . . .

It is understood and agreed that management

possesses the sole right, duty, and

responsibility for operation of the schools

and that all management rights repose in it,

but that such rights must be exercised

consistently with the other provisions of

the agreement. These rights include, but

are not limited to, the following:

A. Discipline or discharge of any employee

for just cause; . . . .

10. Article IX, Section 4.A., of the AFSCME Contract

addresses the subject of "newly - hired employees." It provides

as follows:

1. Newly - hired employees in the bargaining

unit (except temporary, hourly, or

substitute emp loyees) shall be considered

probationary for the first three calendar

months; thereafter, they shall be considered

annual employees, subject to annual

reappointment. During such probationary

period, employees may be terminated without

recourse under this Contract.

2. If, at any time during the probationary

period, the newly - hired employee's

performance is considered unacceptable, the

probationary employee shall be terminated.

11. Article IX, Section 13., of the AFSCME Contract

addresses the School Boar d's Employee Assistance Program. It

provides as follows:

A. AFSCME, Local 1184 and the Board

recognize that a wide range of problems not

directly associated with an employee's job

function can have an effect on an employee's

job performance and/or attend ance.

B. AFSCME, Local 1184 and the Board agree

that assistance will be provided to all

employees through the establishment of an

Employee Assistance Program.

C. The Employee Assistance Program is

intended to help employees and their

families who are s uffering from such

persistent problems as may tend to

jeopardize an employee's health and

continued employment. The program goal is

to help individuals who develop such

problems by providing for consultation,

treatment, and rehabilitation to prevent

their condition from progressing to a degree

which will prevent them from working

effectively.

D. Appropriate measures will be taken to

ensure the confidentiality of records for

any person admitted to the program,

according to established personnel

guidelines and federal regulations.

E. The Guidelines for the Employee

Assistance Program, by reference, are made a

part of this Contract.

F. Employee Rights:

1. Job security will not be jeopardized by

referral to the Employee Assistance Program,

whether the r eferral is considered a

voluntary referral in which an employee

elects to participate in the program, or a

supervisory referral in which a supervisor

uses adopted guidelines to refer an employee

into the program.

2. An employee has the right to refuse

re ferral into the program and may

discontinue participation at any time.

Failure by an employee to accept referral or

continue treatment will be considered in the

same manner as any factor that continues to

affect job performance adversely.

12. Article XI of the AFSCME Contract is entitled,

"Disciplinary Action."

13. Section 1. of Article XI is entitled, "Due Process."

It provides as follows:

A. Unit members are accountable for their

individual levels of productivity,

implementing the duties of their po sitions,

and rendering efficient, effective delivery

of services and support. Whenever an

employee renders deficient performance,

violates any rule, regulation, or policy,

that employee shall be notified by his/her

supervisor, as soon as possible, with th e

employee being informed of the deficiency or

rule, regulation, or policy violated. An

informal discussion with the employee shall

occur prior to the issuance of any written

disciplinary action. Progressive discipline

steps should be followed, however i n

administering discipline, the degree of

discipline shall be reasonably related to

the seriousness of the offense and the

employee[']s record. Therefore,

disciplinary steps may include:

1. verbal warning;

2. written warning (acknowledged);

3. Lett er of reprimand;

4. Suspension/demotion; and

5. Dismissal.

A Conference - for - the - Record shall be held

when there is a violation of federal

statutes, State Statutes, defiance of the

administrator's authority, or a

substantiated investigation to determ ine if

formal disciplinary action should be taken

(1.e., letter of reprimand, suspension,

demotion or dismissal). A Conference - for -

the - Record in and of itself shall not be

considered disciplinary.

B. The parties agree that discharge is the

extreme disci plinary penalty, since the

employee's job, seniority, other contractual

benefits, and reputation are at stake. In

recognition of this principle, it is agreed

that disciplinary action(s) taken against

AFSCME, Local 1184 bargaining unit members

shall be con sistent 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.

C. The employee shall have the right to

Union representation in Conferences - for - the -

Record held pursuant to this Article. Such

a conference shall include any meeting where

disciplinary action will be initiated.

D. The employee shall be given two days'

notice and a statement for the reason for

any Conference - for - the - Record, as defined

above, except in cases deemed to be an

emergency. A maximum of two Union

representatives may be present at a

Conference - for - the Record.

E. The Board agrees to promptly furnish the

Union with a copy of any d isciplinary action

notification (i.e., notice of suspension,

dismissal, or other actions appealable under

this Section) against an employee in this

bargaining unit.

14. Section 2. of Article XI is entitled, "Dismissal,

Suspension, Reduction - in - Grade." I t provides as follows:

Permanent employees dismissed, suspended, or

reduced in grade shall be entitled to appeal

such action to an impartial Hearing Officer

or through the grievance/arbitration process

as set forth in Article VII of the Contract.

The empl oyee shall be notified of such

action and of his/her right to appeal by

certified mail. The employee shall have 20

calendar days in which to notify the School

Board Clerk of the employee's intent to

appeal such action and to select the method

of appeal. If the employee when appealing

the Board action, does not select the

grievance/arbitration process as set forth

in Article VII of the Contract the Board

shall appoint an impartial Hearing Officer,

who shall set the date and place mutually

agreeable to the employee and the Board for

the hearing of the appeal. The Board shall

set a time limit, at which time the Hearing

Officer shall present the findings. The

findings of the Hearing Officer shall not be

binding on the Board, and the Board shall

retain final authority on all dismissals,

suspensions, and reductions - in - grade. The

employee shall not be employed during the

time of such dismissal or suspension, even

if appealed. If reinstated by Board action,

the employee shall receive payment for the

days not wo rked and shall not lose any

longevity or be charged with a break in

service due to said dismissal, suspension,

or reduction - in - grade. Non - reappointments

are not subject to the grievance/arbitration

procedures.

15. Section 4. of Article XI is entitled, " Types of

Separation." It provides, in pertinent part, as follows:

Dissolution of the employment relationship

between a permanent unit member and the

Board may occur by any four [sic] distinct

types of separation.

A. Voluntary -- . . . .

B. 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 excess ive absenteeism. Either

of the foregoing shall constitute grounds

for termination. An employee recommended

for termination under these provisions shall

have the right to request of the Deputy

Superintendent for Personnel Management and

Services a review of the facts concerning

the unauthorized leave. Such right shall

exist for a period of up to 10 working days

after the first day of notification of the

unauthorized absence.

C. Disciplinary -- The employee is

separated by the employer for disciplinary

c ause arising from the employee's

performance or non - performance of job

responsibilities. Such action occurs at any

necessary point in time.

D. Non - reappointment -- . . . .

AFSCME , Local 1184 bargaining unit members

employed by the school district in excess of

five years shall not be subject to non -

reappointment. Such employee may only be

discharged for just cause.

E. Layoff -- . . . .

16. According to Article V, Section 18., of the AFSCME

Contract, the term "workday," as used in the agreement, mea ns

"the total number of hours an employee is expected to be present

and performing assigned duties."

17. The definition of "unauthorized absence," as used in

the AFSCME Contract, is found in Article V, Section 27., of the

contract, which provides as foll ows:

Unauthorized Absence -- Any absence without

pay which has not been requested by the

employee and approved by the supervisor, in

writing, at least five days in advance.

Employees are required to notify the work

location, prior to the beginning of the

workday, when they are unable to report to

work or intend to be absent.

Absences of the employee, where notice of

absence is made prior to the start of the

workday, but are not covered by the employee

having accrued sick or personal leave, shall

be charge d 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 w ere 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 here in

precludes requested leave being determined

to be unauthorized where the employee does

not have available sick or sufficient

personal leave.

School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]"

18. As a School Board employee, Respondent is o bligated to

act in accordance with School Board "rule[s] regulation[s], and

[p]olic[ies]" and, if she does not, she may be disciplined. 1

19. Among the School Board's "rule[s]" are School Board

Rule 6Gx13 - 4A - 1.21 and School Board Rule 6Gx13 - 4E - 1.01 .

20 . School Board Rule 6Gx13 - 4A - 1.21 provides, in pertinent

part, as follows:

Permanent Personnel

RESPONSIBILITIES AND DUTIES

I. EMPLOYEE CONDUCT

All persons employed by The School Board of

Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane lan guage in the presence of

students is expressly prohibited. . . .

21. School Board Rule 6Gx13 - 4E - 1.01 addresses the subject

of "[a]bsences and [l]eaves." It provides, in pertinent part,

that, "[e]xcept for sudden illness or emergency situations, any

empl oyee who is absent without prior approval shall be deemed to

have been willfully absent without leave."

22. School Board drivers and aides are governed by the

following "[a]ttendance [p]olicy":

Drivers and aides are expected to be prompt

and punctual in their attendance on all

workdays in accordance with the current

calendar and their assigned schedule, and

their contract.

9.1 AUTHORIZED ABSENCES

For absences to be authorized, they must be

reported to the driver's or aide's

Transportation Center Dispa tch Office in

advance. This notice shall be made at the

earliest possible time, but no later than

before the next scheduled report time. Even

in an emergency, every possible effort must

be made to inform the Dispatch Office. The

supervisory staff evalua tes the driver's

adherence to this rule. Intent to return

should be treated in the same manner. Leave

forms must be completed promptly for payroll

purposes.

9.2 UNAUTHORIZED ABSENCES

Unauthorized absences are subject to

disciplinary action as prescrib ed under

existing labor contracts. If a driver or

aide does not report to work within 15

minutes after the scheduled report time, or

does not call in absent before the report

time, the absence will be considered

unauthorized. If time off is taken during a

regular working school day without a

supervisor's approval, this absence may also

be considered unauthorized.

9.3 NOTIFICATION OF ABSENCES

- Drivers and aides must notify their

Transportation Center[']s Dispatch Office as

soon as they have determined t hey cannot

report to work. Drivers are not to make

arrangements on their own for a substitute.

All arrangements must be made by the

Dispatch Office.

- If a driver will not be reporting for work

on regular school days, the driver must call

in immediately and speak with the

Dispatcher, or the Field Operations

Specialist.

- If a driver cannot report to work because

of an emergency situation, the driver must

contact the Dispatch Office as soon as

possible. If the situation requires a

driver to leave the area , the driver should

have a relative or friend contact the office

for the driver.

- If the absence will occur sometime in the

future, the Dispatch Office should be given

as much advance notification as possible.

- When the Dispatch Office is contacted, an

e xplanation for the absence should be given

along with the length of absence and

estimated date of return.

- If the driver is off from work for more

than one day, the driver must contact the

office each day, prior to the report time,

with a complete update of the situation.

The only times the driver does not have to

contact the office on a daily basis are as

follows:

- Admission to a hospital as a patient

- Maternity leave

- A doctor's work release for a specified

number of days

- Extended sick leave 2

- App roved leave of absence

- Out of town

9.4 CHECK - IN POLICY

- All employees are expected to arrive at

work on or before their scheduled report

time.

- Drivers and aides will be given a five

minute grace period to report to work,

during which no disciplinary nor financial

actions will be taken. For example, if the

driver or aide is scheduled to report for

work at 6:00 a.m., but signs - in by 6:05

a.m., the driver or aide will be allowed to

go out on the assigned route with no

repercussions.

- Drivers and aides who report to work 6 - 15

minutes after the scheduled report times

will be considered "tardy." Tardy drivers

and aides will be permitted to work.

However, the dispatch may assign a stand - by

or substitute driver or aide to the route of

the tardy employee. Drivers and aides who

are more than 10 minutes late, but less than

16 minutes late, will be used as substitute

drivers and aides and will not be allowed to

operate their regularly assigned route. For

the tardy driver or aide who was replaced by

a substit ute or stand - by driver or aide,

such driver or aide will then be assigned as

substitute for other routes needing

coverage, as requirements dictate. A record

will be kept documenting all tardiness.

Lost time will be accumulated for tardiness

and employees will be docked pay in 1/2 day

increments.

- Drivers and aides who report to work 16 or

more minutes after the scheduled report time

will be considered "absent without leave"

(AWOL). These persons will not be permitted

to work. They will be placed on

"un authorized leave - without pay" (ULWOP) and

will be subject to disciplinary action in

accordance with the American Federation of

State, County, and Municipal Employees

(AFSCME) Collective Bargaining Agreement

- Extenuating circumstances will be evaluated

by the Center Director and, upon proper

documentation, may not be held against the

employee. Repeated occurrences, such as

"car broke down for the third time this

week," will not be considered extenuating.

9.5 DOCUMENTATION

It is the responsibility of th e drivers and

aides to report to the supervisor in order

to complete and/or produce all required

paperwork related to the absence on the

first workday upon return to work. Failure

to comply with this procedure may result in

an unauthorized absence regardl ess of

extenuating circumstances.

Pre - 2000 - 2001 Regular School Year Warnings and Conferences - for -

the - Record Regarding Respondent's Attendance and Leave

23. On December 1, 1999, Ms. Lamboglia - Candales held a

Conference - for - the - Record with Respondent to d iscuss

Respondent's "unauthorized absences since March of 1999." Ms.

Lamboglia - Candales subsequently prepared and furnished to

Respondent a memorandum in which she summarized what had

transpired at the conference and what "action [would] be taken."

Ms. L amboglia - Candales' memorandum read, in pertinent part, as

follows:

CONFERENCE DATA

This is your second Conference - For - The -

Record during this year and it was held to

review your unauthorized absences since

March of 1999 when the first conference was

held. . . . During this conference you were

provided with a copy of your leave history

and this administrator reviewed it with

you. . . . Since the conference in March of

1999 you have incurred approximately thirty

(30) days of unauthorized leave without pay .

This administrator also informed you that

this is considered excessive since the

number of days worked by employees in your

bargaining unit is approximately 181 days in

ten months.

You stated that these unauthorized absences

were due to the fact that y ou suffer from

migraine headaches, high blood pressure as

well as another medical condition that

requires surgery to remove some growths.

The medication that you take prevents you

from driving since it makes you drowsy. You

also stated that you do not al ways go to

your physician's office for treatment. You

provided this administrator with

documentation of one of the medications you

take as well as the names of the physicians

that treat you. . . .

ACTION TAKEN

This administrator reviewed with you Articl e

V, Section 27 and Article XI, Section 4 of

the bargaining agreement between M - DCPS and

AFSCME and informed you that failure to show

improvement could lead to further

disciplinary action. . . .

You were also instructed to provide this

administrator with documentation regarding

your condition or treatments. Also,

whenever you have a medical appointment to

provide documentation verifying those.

ACTION TO BE TAKEN

This administrator will continue to monitor

your attendance. A supervisory referral to

the district support office was not done on

your behalf since Ms. Ramsby, AFSCME

Representative stated on your behalf that it

was not necessary.

Also please remember that you have the right

to append, to clarify, or to explain any

information recorded in this conference by

this summary.

Among the documents appended to the memorandum were copies of

the provisions of the collective bargaining agreement between

the School Board and AFSCME that were referenced in the

memorandum.

24. On March 1, 1999, Respondent received a verbal warning

from Ms. Lamboglia - Candales concerning Respondent's

"unauthorized leave." That same day, Respondent was presented

by Ms. Lamboglia - Candales with a written Transportation

Operations Procedures Reminder reflecting that Respondent h ad

received the aforementioned verbal warning and directing

Respondent to review Article V, Section 27., and Article XI,

Section 4.B., of the collective bargaining agreement between the

School Board and AFSCME.

25. On May 3, 2000, Ms. Lamboglia - Candales i ssued

Respondent a written warning concerning Respondent's

"unauthorized leave." When the written warning was presented to

Respondent on May 23, 2000, she refused to sign it.

26. On July 21, 2000, Ms. Lamboglia - Candales held another

Conference - for - the - Re cord with Respondent to again discuss

Respondent's "unauthorized absences." Ms. Lamboglia - Candales

subsequently prepared and furnished to Respondent a memorandum

in which she summarized what had transpired at the conference

and what "action [would] be tak en." Ms. Lamboglia - Candales'

memorandum read, in pertinent part, as follows:

CONFERENCE DATA

This Conference - For - The - Record was held to

review your unauthorized absences since . .

. August 30, 1999. It was originally

scheduled for June 9, 2000 but sinc e you

were not available that day it was re -

scheduled for this day. During this

conference you were provided with a copy of

your leave history and this administrator

reviewed it with you. . . . You received a

verbal warning on March 1, 2000 and a

written warning on May 23, 2000. . . .

Since August 30, 1999 you have incurred

approximately thirty - five unauthorized days

(35) of leave and twenty - five (25)

authorized days. You have been absent from

work a total of seventy (70) days in one

school year which i s approximately ten

months or 181 work days for employees in

your bargaining group.

You stated that many of your unauthorized

absences were due to the fact that you have

medical problems (high blood pressure). You

also stated that the medication you are

taking is not keeping it under control but

your physician was going to change it to see

if it helped. You also mentioned that you

were considering taking a temporary demotion

to a bus aide position until you felt

better. You presented documentation for

s ome of the days you have been absent and

this administrator reviewed it. She

reminded you that all documentation

regarding absences should be brought in as

soon as the absence occurs and not months

later. . . .

ACTION TAKEN

This administrator reviewed w ith you Article

V, Section 27 and Article XI, Section 4 of

the bargaining agreement between M - DCPS and

AFSCME and informed you that failure to show

improvement could lead to further

disciplinary action. . . . She also

informed you that if you decided to t ake the

voluntary demotion to bus attendant you

could discuss this with her at a later date.

ACTION TO BE TAKEN

This administrator will do a supervisory

referral to the district support agency at

this time and will continue to monitor your

attendance. A lso you are informed that you

have the right to append, clarify, or

explain any information recorded in this

conference by this summary.

Among the documents appended to the memorandum were copies of

the provisions of the AFSCME Contract that were referenc ed in

the memorandum.

27. As promised, Ms. Lamboglia - Candales referred

Respondent to the School Board's Employee Assistance Program on

July 25, 2000, and advised Respondent of the referral on that

same date.

28. Approximately a week after the July 21, 20 00,

Conference - for - the - Record, Respondent told Ms. Lamboglia -

Candales that her physician had changed her medication and that

the new medication "was working" and her "blood pressure was

fine." As a result, she told Ms. Lamboglia - Candales, she was

not goin g to pursue the temporary demotion to bus aide that she

had previously discussed with Ms. Lamboglia - Candales.

The 2000 - 2001 School Year

29. On February 1, 2001, Ms. Lamboglia - Candales, along

with Charlie Horn, an administrative assistant at the Center,

h eld another Conference - for - the - Record with Respondent to again

discuss Respondent's "unauthorized absences." Mr. Horn

subsequently prepared and furnished to Respondent a memorandum

in which he summarized what had transpired at the conference and

what "act ion [would] be taken." Mr. Horn's memorandum read, in

pertinent part, as follows:

CONFERENCE DATA

This is your second Conference - For - The -

Record in the past twelve months during this

year and it was held to review your

unauthorized absences since July 21, 2000

when the other conference was held. . . .

During this conference you were provided

with a copy of your leave history and Ms.

Candales reviewed it with you. . . . Since

the conference on July 21, 2000 you have

incurred approximately fifteen (15) day s of

unauthorized leave without pay. Ms.

Candales informed you that this is

considered excessive since the number of

days worked by employees in your bargaining

unit is approximately 181 days in ten

months.

You stated that these unauthorized absences

wer e due to dentist and court appointments.

You provided Ms. Candales with documentation

to review. . . . Ms. Candales reviewed it

in your presence and determined that

approximately 15 days of unauthorized leave

could have been authorized had you presented

the documentation at the time the absence

occurred.

ACTION TAKEN

Ms. Candales reviewed with you Article V,

Section 27 and Article XI, Section 4 of the

bargaining agreement between M - DCPS and

AFSCME and informed you that failure to show

improvement could lead to further

disciplinary action. . . .

You were once again instructed to provide

Ms. Candales with documentation regarding

your appointments and/or absences. It is

important that you present your

documentation in a timely manner meaning as

soon as t he absence occurs and not months

later.

ACTION TO BE TAKEN

Ms. Candales will continue to monitor your

attendance. A supervisory referral to the

district support agency will not be done at

this time. Also, please remember that you

have the right to appe nd, to clarify, or to

explain any information recorded in this

conference by this summary.

Among the documents appended to the memorandum were copies of

the provisions of the AFSCME Contract that were referenced in

the memorandum.

30. On March 29, 2001, the Center's director, Ms. Murphy,

held a Conference - for - the - Record with Respondent to discuss "her

job performance as related to [her] attendance." Ms. Murphy

subsequently prepared (on April 23, 2001) and furnished to

Respondent (on May 3, 2001) a memora ndum in which she summarized

what had transpired at the conference. Ms. Murphy's memorandum

read as follows:

A Conference - For - The - Record was held in the

office of the director of Southwest Regional

Transportation Center on Thursday, March 29,

2001. The f ollowing were in attendance, Ms.

Linda Hogans, Bus Driver, Ms. Joyce Moore,

AFSCME, Ms. Carolyn Ransby, AFSCME, Ms.

Dorothy Ferguson, Administrative Assistant,

and Ms. Mary E. Murphy.

The purpose of this conference was to review

your job performance as re lated to your

attendance. You were given a copy of your

leave history, which was reviewed during the

conference. Since the beginning of this

school year, you have accumulated 27

unauthorized absences. The original total

was 44 days and after reviewing t he medical

documentation you provided during the

conference, the amount of days was changed

to a total of 27 unauthorized days. Ms.

Moore questioned the conference held by Mr.

Horn and Ms. Candales when you presented

documentation but Ms. Candales did not

accept the documents. The days have been

approved and the total days have changed

again to 15 and a half unauthorized days

without pay.

You were asked why you had accumulated so

many unauthorized days? Ms. Moore stated

that at one time you were caring for a

cousin who could not care for [her]self.

This cousin later died. Also, you had [a]

death in the family and you have been

injured on the job, which plays a big part

with your absences.

You indicated that you have high blood

pressure and you doctor tried several

different medications to maintain control.

You indicated that there are times when you

do not feel well so you stay home. I asked

if your doctor supplied you with notes? You

indicated that the doctor would give you

some notes but not all o f the time. I

explained that when you present

documentation, those days would be

authorized.

Ms. Moore asked if you had previous

conferences. I answered yes that Ms.

Hogan[s] has had a couple of conferences.

During one of the conferences held by Ms.

Can dales, you were advised to present

documentation directly to her so your

absences could be authorized. Ms. Candales

held a conference with Ms. Hogan[s] on

July 21, 2000. This conference was held

during the summer months but the conference

did not includ e unauthorized days

accumulated during the summer. Ms. Ferguson

stated that the conference was held in July

because several attempts were made to have

the conference in June and Ms. Candales was

not able to conduct the conference due to

the amount of days you were off.

During the conference you were directed to:

1. To come to work and be on time.

2. If you need to be off, present

documentation to Ms. Candales or myself.

3. If either the Coordinator or Director is

not available, give the documentatio n to the

Administrative Assistant on duty.

You signed a supervisory referral to the

District Support Agency. You were told that

the summary of this conference would be

forwarded to Mr. Jerry Klein, Administrative

Director and the Office of Professional

S tandards for review for possible

disciplinary actions not excluding

dismissal. Also you were informed that you

have the right to append, clarify, or

explain any information recorded in this

conference by this summary.

Ms. Moore stated that going to Distr ict

support is not all bad [in] that the

district has many programs to help

employees. It is not just for disciplinary

problems. I mentioned that during the

yearly in - service District Support is

discussed and explained to the employees.

Ms. Moore stated that in the in - service

meeting there is so much noise that no one

can hear. Ms. Hogan[s] said that she was

not aware of the program. I checked her

file and found out that Ms. Candales

referred Ms. Hogan[s] in July 5, 2000. Ms.

Hogan[s] declined to part icipate.

31. By signing (on March 29, 2001) the "supervisory

referral to the District Support Agency" mentioned in Ms.

Murphy's memorandum, Ms. Hogans signified that she had "been

advised of the referral."

32. Following the March 29, 2001, Conference - fo r - the -

Record, Respondent continued to have unauthorized absences.

33. On June 7, 2001, Barbara Moss, a district director in

the School Board's Office of Professional Standards, held a

Conference - for - the - Record with Respondent to discuss her

absenteeism an d her "future employment status" with the School

Board. Ms. Moss subsequently prepared and then mailed to

Respondent a memorandum in which she summarized what had

transpired at the conference. In the "Action To Be Taken"

portion of the memorandum, Ms. Mo ss stated the following:

Action To Be Taken

You were advised that the information

presented in this conference, as well as

subsequent documentation, would be reviewed

with the Assistant Superintendent in the

Office of Professional Standards, the

Associate Superintendent of School

Operations, the Administrative Director of

Transportation, and the Director of

Southwest Transportation Center.

Upon completion of the conference summary, a

legal review by the School Board attorneys

will be requested. Receipt o f their legal

review, with endorsement by the Associate

Superintendent, will compel formal

notification of the recommended disciplinary

action. All disciplinary action(s) shall be

consistent with the concepts and practice of

progressive or corrective disc ipline. The

degree of discipline shall be reasonably

related to the seriousness of the offense

and the employee's record.

You were apprised of your right to clarify,

explain, and/or respond to any information

recorded in this conference by summary, and

t o have any such response appended to your

record.

34. Ms. Moss provided Respondent the opportunity,

following the Conference - for - the Record, to present

documentation concerning any unauthorized absence that

Respondent believed should be excused.

35. R espondent took advantage of this opportunity and

provided Ms. Moss with five or six letters from the Office of

the Miami - Dade State Attorney asking that Respondent's absence

from work on various dates be excused because she was

"subpoenaed to the Office of the State Attorney" on those dates

in connection with a criminal case, State v. China Wilson , Case

No F00 - 21153, in which she was an "essential witness."

36. Upon reviewing the letters, Ms. Moss noticed that

there were "obvious" alterations on "a couple of the letters."

Dates had been typed in over "white - out" and they "were jammed

together." Ms. Moss faxed to the Office of the Miami - Dade State

Attorney copies of all of the letters she had received from

Respondent following the June 7, 2001, Conference - for - the - Record

and inquired whether these letters were authentic. Ms. Moss was

told by the assistant state attorney assigned to the State v.

China Wilson case that "there was only one letter that was

authentic."

37. Ms. Moss subsequently met with Respond ent, who was

accompanied during the meeting by the senior vice president of

AFSCME, Christine Harris, and an AFSCME shop steward, Charlie

Lynch. Ms. Moss "showed them the [letters she had received from

Respondent] and let them know that [the School Board was] moving

forward with dismissal."

38. In response to this advisement, either Respondent or

Ms. Harris indicated that Respondent wanted to resign in lieu of

being terminated and that she would like to have the

aforementioned letters returned to her.

39 . Ms. Moss gave Respondent back the letters (without

making copies of them). Respondent then left.

40. A few minutes later, Respondent returned and indicated

that she was "rescind[ing] her offer to resign."

41. On August 10, 2001, the Superintendent o f Schools sent

a letter to Respondent advising her that he was recommending

that the School Board, at its scheduled meeting on August 22,

2001, "suspend [her] and initiate dismissal proceedings against

[her] effective the close of the workday, August 22, 2 001, for

just cause, including, but not limited to: excessive

absenteeism; non - performance and deficient performance of job

responsibilities; and violation of School Board Rules 6Gx13 - 4A -

1.21 , Responsibilities and Duties; and 6Gx13 - 4E - 1.01 , Absences

and L eaves."

42. At its August 22, 2001, meeting, the School Board took

the action recommended by the Superintendent of Schools.

43. On more than one occasion during the 2000 - 2001 regular

school year, Respondent had three or more consecutive workdays

of una uthorized absences.

44. The regular school year workdays during the 12 - month

period ending June 1, 2001, on which Respondent had unauthorized

absences include (in addition to those set forth in the parties'

January 11, 2002, Stipulation) the following: June 6, 2000

(whole day); June 9, 2000 (whole day); November 9, 2000 (whole

day); December 15, 2000 (whole day); January 30, 2001 (half

day); February 5, 2001 (whole day); May 25, 2001 (half day); May

30, 2001 (whole day); May 31, 2001 (whole day); and Jun e 1, 2001

(whole day).

45. Respondent also had numerous authorized absences (with

and without pay) during the 12 - month period ending June 1, 2001.

From August 24, 2000, through May 24, 2001, she had 41 1/2

workdays of authorized absences without pay and ten and a half

workdays of authorized absences with pay.

46. Many of the authorized absences without pay were

initially unauthorized absences, but they were converted to

authorized absences without pay following the review of

documentation provided by Re spondent.

47. The refusal of School Board administrators to excuse

any additional unauthorized absences was within their sound

discretion.

48. They were under no obligation to do so.

49. They acted reasonably, given Respondent's failure to

present in a timely manner credible documentation demonstrating

that these additional unauthorized absences were the result of

extenuating circumstances and further considering Respondent's

pattern of excessive absences.

50. Respondent's excessive absences had an adve rse impact

on the Center's operations. As Ms. Murphy explained during her

testimony (at page 158 of the hearing transcript):

"[W]henever . . . a driver has a route and

[the driver] take[s] off, then we have to

place a substitute or a stand - by driver on

it . And whenever that occurs, the route

automatically runs late, because the regular

driver[] knows the route better than the

substitute driver or stand - by driver[].

CONCLUSIONS OF LAW

51. "In accordance with the provisions of s. 4(b) of Art.

IX of the S tate Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." Se ction 230.03(2), Florida Statutes.

52. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. Section

230.23(5)(f), Florida Statutes ("The school board, acting as a

board, shall exercise all powers and perfo rm all duties listed

below: PERSONNEL. -- . . . [P]rovide for the . . . suspension,

and dismissal of employees . . ."); and Section 231.001, Florida

Statutes ("Except as otherwise provided by law or the State

Constitution, district school boards are author ized to prescribe

rules governing personnel matters, including the assignment of

duties and responsibilities for all district employees.").

53. The "rules governing personnel matters" that have been

adopted by the School Board include School Board Rules 6Gx13 - 4A -

1.21 and School Board Rule 6Gx13 - 4E - 1.01 .

54. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." Section 447.20 3(2), Florida Statutes.

55. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or for other

legitimate reasons." Section 447.209, Florida Statutes.

5 6. It, however, must exercise these powers in a manner

that is consistent with the requirements of law and the

provisions of any collective bargaining agreements into which it

has entered with the bargaining unit representatives of its

employees. See Chi les v. United Faculty of Florida , 615 So. 2d

671, 672 - 73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bo und by that [collective bargaining

agreement] under the principles of contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); and Palm Beach County School

Board v. Auerbach , Case No. 96 - 3683, 1997 WL 1052595 (Fla. DOAH

February 20, 1997)(Recommended O rder)("Long - standing case law

establishes that in a teacher employment discipline case, the

school district has the burden of proving its charges by a

preponderance of the evidence. . . . However, in this case, the

district must comply with the terms of t he collective bargaining

agreement, which, as found in paragraph 27, above, requires the

more stringent standard of proof: clear and convincing

evidence.").

57. "Under Florida law, a [district] school board's

decision to terminate an employee is one af fecting the

employee's substantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute." 3 Sublett v. District School

Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

58. The employee must be given written notice of the

specific charges prior to the "formal hearing." Although the

notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [district school board] alleges has

been violated and the conduct which occasioned [said]

violation." Jacker v. School Board of Dade County , 426 So. 2d

1149, 1151 (Fla. 3d DCA 1 983)(Jorgenson, J. concurring).

59. Any adverse action taken against the employee may be

based only upon the conduct specifically alleged in the written

notice of specific charges. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 ( Fla. 4th DCA 1999);

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); and Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA

1993); and Delk v. Department of Professional Regulat ion , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

60. At the "formal hearing," the burden is on the district

school board to prove the allegations contained in the notice.

61. Unless the collective bargaining agreement covering

the bargaining unit of which the employee is a member provides

otherwise (which the AFSCME Contract does not), 4 the district

school board's proof need only meet the preponderance of the

evidence standard. See McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears

the burden of proving, by a preponderance of the evidence, each

element of the charged offense which may warrant dismissal.");

Sublett v. Sumter County School Board , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995)("We agree with the hearing officer that for

the School Board to demonstrate just cause for termination, it

must prove by a preponderance of the evidence, as required by

law, that the allegations of sexual misconduct were

true . . . ."); Allen v. School Board of Dade County , 571 So. 2d

568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing

officer and the School Board correctly determined that the

appropriate standard of proof in dismissal proceedings was a

preponderance of the evidence. . . . The instant case does not

involve the loss of a license and, therefore, Allen's losses are

adequately protected by the preponderance of the evidence

standard."); and Dileo v. School Board of Dade County , 569 So.

2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required

quantum of proof in a teacher dismissal case is clear and

convincing evidence, and hold that the record contains competent

and substantial evidence to support both charges by a

preponderance of the evidence standard.").

62. Where the employee is an "educational support

employee" who has successfully completed his or her probationary

period and the adverse action sought to be taken against the

employee is termination, the district school board must act in

accordance with the provisions of Section 231.3605, Florid a

Statutes, 5 which provides as follows:

(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 transp ortation 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 Department of Education or district

school board pursuant to s. 231.1725. This

section does not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(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 educationa l support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school boar d rule in cases where a

collective bargaining agreement does not

exist, or reduces the number of employees on

a districtwide basis for financial reasons.

(c) In the event a superintendent seeks

termination of an employee, the district

school board may s uspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

63. Respondent is an "educational support employee,"

within the meaning of Section 231.3605, Florida Statutes, who is

covered by a collective bargaining agreement (the AFSCME

Contract).

64. Pursuant to Section 231.3605, Florida Statutes, her

employment may be terminated only "for reasons stated in the

collective bargaining agreement."

65. An examination of the provisions of the AFSCME

Contract reveals that it allows the Schoo l Board, among other

things, to terminate a bargaining unit member covered by the

agreement on the grounds of "abandonment of position" and

"excessive absenteeism" and to take disciplinary action against

a bargaining unit member, including discharge, where the

bargaining unit member is guilty of "deficient performance,"

"non - performance of job responsibilities," or "violat[ion of]

any rule, regulation or policy," provided the disciplinary

action is "reasonably related to the seriousness of the offense

and t he employee[']s record."

66. The Notice of Specific Charges served on Respondent

alleges that Respondent's termination is warranted under the

provisions of the AFSCME Contract because of her "excessive

absenteeism and abandonment of position," as those t erms are

described in Article XI, Section 4.B., of the AFSCME Contract

(Count I); her "deficient performance and/or non - performance of

her job responsibilities" (Count II); and her "violation of

School Board Rule 6Gx13 - 4A - 1.21 " (Count III).

67. The prepon derance of the record evidence establishes

that, during the 12 - month period ending June 1, 2001, Respondent

was "absent without authorization in excess of 10 [work]days"

(as alleged in paragraph 17. of the Notice of Specific Charges)

and was "absent three or more consecutive [work]days without

authorization" (as alleged in paragraph 18. of the Notice of

Specific Charges). These unauthorized absences (referenced in

paragraphs 17. and 18. of the Notice of Specific Charges, which

the School Board proved by a preponderance of the evidence)

constitute "excessive absenteeism" and "abandonment of

position," respectively, within the meaning of Article XI,

Section 4.B., of the AFSCME Contract. Standing alone, they

provide "grounds for termination" of Respondent's e mployment

with the School Board pursuant to Article XI, Section 4.B., of

the AFSCME Contract, as alleged in Count I of the Notice of

Specific Charges. 6

68. In her Proposed Recommended Order, Respondent argues

that "[e]mployees who are mentally incapacit ated and who are

disciplined for absences will often be treated leniently by

arbitrators, especially if the employee, similarly to HOGANS, is

in a treatment program"; and that "several arbitrators have also

reduced discipline on the basis that severe depre ssion and post -

traumatic stress disorder can be so debilitating that the

employee is unable to notify the employer of an absence." These

arbitration cases relied upon by Respondent, however, are

inapposite.

69. There is no persuasive competent substant ial record

evidence in the instant case that Respondent is now, or was at

any time material to the instant case, "mentally incapacitated,"

suffering from "severe depression" or a "post - traumatic stress

disorder," or participating in a "treatment program" t o help her

deal with these problems. 7 Respondent presented no expert

testimony concerning her mental or emotional health. The only

testimony she presented linking her absences with her mental or

emotional health was her own self - serving testimony that, i f she

was absent on May 25, 2001, May 30, 2001, and June 1, 2001, it

was because she "ha[d] to go to the doctor[] because of [her]

illness or [she was] just depressed over the situation [she had]

been going through." Even if this testimony is to be believ ed

(and its credibility is extremely suspect 8 ), it is insufficient

to support a finding that Respondent was, on May 25, 2001,

May 30, 2001, and June 1, 2001, or at any other time, suffering

from a depressive or other mental or emotional illness or

disabil ity. Cf . Matter of Disciplinary Proceeding Against

Petersen , 846 P.2d 1330, 1354 ( Wash. 1993) ("The diagnosis of

depression is not a simple process of encyclopedic reference.

Although some symptoms may be observable by lay witnesses, the

entire diagnostic process involves 'medical matters which cannot

be evaluated by the observation of lay witnesses.' Expert

testimony must therefore be used to determine whether a

respondent attorney in a disciplinary proceeding had a mental

disability if the attorney clai ms mental disability as a

mitigating circumstance."); and Matter of Disciplinary

Proceedings Against Thompson , 508 N.W.2d 384, 386 - 87 ( Wis.

1993)(" Likewise without merit is Attorney Thompson's position

that the referee was required to find that his miscond uct

resulted from his claimed medical condition. The only evidence

he presented on that issue was his own testimony of the symptoms

and the effect of his claimed depression and anxiety on his work

in the matters under consideration in this proceeding. Be cause

she considered depression a recognized medical condition or

illness , the referee stated that she could not take what would

amount to judicial notice that Attorney Thompson suffered from

depression and anxiety without expert testimony to that effect.

The referee properly determined that there was no competent

evidence to establish either the existence of the claimed

illness or a causal connection between it and the misconduct.").

70. Moreover, even if Respondent had proven that she was

suffering fr om a mental or emotional disorder that had led to

her unauthorized absences, there is nothing in the AFSCME

Contract that would require the School Board to now treat these

absences as authorized or as if, for purposes of Article XI,

Section 4.B., of the AFSCME Contract, they had never occurred.

71. Respondent further contends in her Proposed

Recommended Order that the "School Board failed to cumulatively

and progressively discipline [Respondent]." According to

Respondent, if any action can be taken aga inst her by the School

Board, it can be no more severe than the issuance of a letter of

reprimand inasmuch as she has "never received any formal

discipline other than a verbal and written warning" and a letter

of reprimand is the "next step of discipline" (after a written

warning) under Article XI, Section 1.A., of the AFSCME Contract.

The argument is unpersuasive.

72. A reading of Article XI, Section 1.A., of the AFSCME

Contract reveals that it does not require the School Board, when

taking disciplinar y action against bargaining unit members, to

follow the particular "progressive discipline steps" enumerated

in this provision of the contract. See Palm Beach County

Canvassing Board v. Harris , 772 So. 2d 1273, 1287 ( Fla.

2000) ( "Whereas section 102.11 is mandatory (i.e., the Department

'shall' ignore late returns), section 102.112 is permissive

(i.e., the Department 'may' ignore late returns, or the

Department "may" certify late returns and fine tardy Board

members."); Dooley v. State , 789 So. 2d 1082, 108 4 ( Fla. 1st DCA

2001)( "[R]ule 3.170(1) is clearly permissive in that it states a

defendant 'may file a motion to withdraw.'"); State v. Thomas ,

528 So. 2d 1274, 1275 (Fla. 3d DCA 1988) (" As we perceive it, the

State's argument is that 'should' is the equiva lent of 'shall'

and that 'shall' is mandatory. While we acknowledge that

'should' retains its arcane, schoolmarm meaning as a past tense

of 'shall,' its modern usage is as the weaker companion to the

obligatory 'ought.' Thus, it is said that '[o]ught sho uld be

reserved for expressions of necessity, duty, or obligation;

should, the weaker word, expresses mere appropriateness,

suitability or fittingness.'"); Massey Builders Supply Corp. v.

Colgan , 553 S.E. 2d 146, 150 ( Va. App. 2001)( "The word 'shall'

is pr imarily mandatory, whereas the word 'should' ordinarily

implies no more than expediency and is directory only."); and

Magnuson v. Grand Forks County , 97 N.W.2d 622, 624 ( N.D.

1959) ("It does not seem that the word 'should' was used

inadvertently. Other ins tructions on the back of the order

contain the more compulsive word 'must,' as for example 'the

original of this order must be signed by the recipient or person

acting in his behalf and by the vendor.' We construe the word

'should' as used here to be pers uasive rather than mandatory.").

73. Moreover, Article XI, Section 1.A., of the AFSCME

Contract applies only when adverse action is taken against a

bargaining unit member for "disciplinary cause." It does not

apply to "separations" for "excessive absen teeism/abandonment of

position," which are addressed in Article XI, Section 4. B ., of

the contract and are separate and distinct from separations for

"disciplinary cause" (discussed in Article XI, Section 4. C ., of

the contract).

74. Article XI, Section 4.B., of the AFSCME Contract makes

clear that "excessive absenteeism" (evidenced by "unauthorized

absences totaling 10 or more workdays during the previous 12 -

month period") and "abandonment of position" (evidenced by "[a]n

unauthorized absence for three c onsecutive workdays") are

considered to be so deleterious to the operations of the School

Board that they " shall constitute grounds for termination." 9

75. The School Board has shown by a preponderance of the

record evidence that, as alleged in Count I o f the Notice of

Specific Charges, "Respondent's conduct [involving her

unauthorized absences during the 12 - month period ending June 1,

2001] constitutes excessive absenteeism and abandonment of

position," as those terms are described in Article XI, Section

4.B., of the AFSCME Contract, and therefore there exist "grounds

for [her] termination" pursuant to this provision of the

collective bargaining agreement.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMM ENDED that the School Board issue a final order

sustaining Respondent's suspension and terminating her

employment with the School Board pursuant Article XI, Section

4.B., of the AFSCME Contract.

DONE AND ENTERED this 16th day of May, 2002, in

Tallahassee , Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2002.

ENDNOTES

1/ An employee who does not meet his r esponsibility of

complying with School Board "rule[s] regulation[s], and

[p]olic[ies]" is guilty of "non - performance of job

responsibilities," as that term is used in Article XI, Section

4.C., of the AFSCME Contract.

2/ Article XIII, Section 6., of the A FSCME Contract discusses

"extended sick leave without pay." It provides as follows:

Extended leave without pay for illness of

the employee constitutes a protection of

one's employment rights. Such leave shall

be granted only for health of self or family

member, provided the following requirements

are met:

A. Employees seeking such leave must make

application on the form provided by

Personnel Management and Services.

B. Such application must be supported and

accompanied by the following:

1. identity of person in ill health;

2. statement from physician explaining why

such leave is necessary; and

3. effective dates of requested leave

(beginning and ending).

C. Such leave shall not exceed a year in

duration.

D. Employees on leave may, upon expir ation

of leave, apply for an extension. The

employer may grant such extension as

warranted; however, the maximum time an

employee may be absent on leave for illness

of self, illness of relative, or any

combination thereof shall be three years.

There is n o indication in the record that Respondent at any time

applied for "extended sick leave without pay."

3/ "A county school board is a state agency falling within

Chapter 120 for purposes of quasi - judicial administrative

orders." Sublett v. District Schoo l Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

4/ Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement.

5 / Notwithstanding the holding in Rosario v. Burke , 605 So. 2d

523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non -

certified School Board employee is not governed by the

provisions of Section 231.36(6)(b), Florida Statutes. In

Rosario , the Second Di strict Court of Appeal provided the

following explanation for its holding that the provisions of

Section 231.36(6)(b), Florida Statutes, were applicable to non -

certified district school board personnel:

We are not completely convinced that the

legislature initially intended the narrow

grounds for dismissal described in section

231.36(6)(b) to apply to nonprofessional

supervisory staff, as compared to

principals, assistant superintendents and

other certified positions. Nevertheless,

the statute was interpr eted to include such

public employees in 1981, after the

enactment of section 447.201 - .609, which

applies generally to public employees. See

Smith v. School Bd. of Leon County , 405 So.

2d 183 (Fla. 1st DCA 1981). Section 231.36

was amended after the Smit h decision without

any disapproval of that decision. If the

statute requires modification or

clarification concerning nonprofessional

supervisory school personnel, that change

should occur in the legislature.

Subsequent to the Second District's decision in Rosario , the

1994 Florida Legislature enacted Section 231.3605, Florida

Statutes, which provides that an "educational support employee"

may be terminated "for reasons stated in the collective

bargaining agreement, or in district school board rule in cas es

where a collective bargaining agreement does not exist" and

further prescribes the procedure that must be followed "[i]n the

event a superintendent seeks termination of an [educational

support] employee." In view of the enactment of Section

231.3605, F lorida Statutes, the provisions of Section

231.36(6)(b), Florida Statutes, can no longer be reasonably

construed as being directly applicable to non - certified school

board personnel.

6/ It is therefore unnecessary to determine whether there are

also grou nds to terminate Respondent for "disciplinary cause,"

within the meaning of Article XI, Section 4.C., of the AFSCME

Contract, as further alleged in Counts I and II of the Notice of

Specific Charges.

7/ While the evidentiary record does establish that Res pondent

was referred to the School Board's Employee Assistance Program,

it is silent as to whether she "accepted" or "refused" the

referral (as was her choice under Article IX, Section 13.F.2.,

of the AFSCME Contract).

8/ Respondent was not a credible wi tness. The School Board

presented convincing evidence that not only established that

Respondent's testimony regarding the letters she claimed to have

received from the Office of the Miami - Dade State Attorney was

contrived, but also cast serious doubt on t he credibility of the

remaining portions of her testimony that were not directly

contradicted by the School Board's evidentiary presentation.

Walker v. Florida Department of Business and Professional

Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dau ksch, J.,

specially concurring) ( " [T]he trier of fact is never bound to

believe any witness, even a witness who is uncontradicted.");

Maurer v. State , 668 So. 2d 1077, 1079 ( Fla. 5th DCA 1996)(" A

judge acting as fact - finder is not required to believe the

te stimony of police officers in a suppression hearing, even when

that is the only evidence presented; just as a jury may

disbelieve evidence presented by the state even if it is

uncontradicted, so too the judge may disbelieve the only

evidence offered in a s uppression hearing."); and Bellman v.

Yarmark Enterprises, Inc. , 180 So. 2d 663, 664 ( Fla. 3d DCA

1965)(" The two principal witnesses relied upon by appellant for

the proof of usury were substantially impeached and we cannot

say that the trial court was bou nd to accept their testimony. A

chancellor as the 'finder of fact' may find a witness who has

been impeached completely unworthy of belief, and in such

circumstances it is within his province to reject such

testimony.").

9/ The Florida Supreme Court has observed that "excessive

unauthorized absenteeism presumptively hampers the operation of

a business and is inherently detrimental to an employer ."

Tallahassee Housing Authority v. Florida Unemployment Appeals

Commission , 483 So. 2d 413, 414 ( Fla. 1986); see also Pericich

v. Climatrol, Inc. , 523 So. 2d 684, 685 ( Fla. 3d DCA

1988)(" Employers still retain their traditional right to

terminate employees for legitimate business reasons, such

as . . . excessive absenteeism.").

COPIES FURNISHED:

John A. Grec o, Esquire

School Board of Miami - Dade County

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

Miami, Florida 33034

Linda Hogans

18665 Southwest 100th Avenue

Miami , Florida 33157

Merrett R. Stierheim

Interim Superintendent

Miami - Dade County School Board

1450 Northeast 2nd Avenue, No. 912

Miami, Florida 33132 - 1394

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 0 8

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

1 5 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.

1 An employee who does not meet his responsibility of comply ing

with School Board "rule[s] regulation[s], and [p]olic[ies]" is

guilty of "non - performance of job responsibilities," as that

term is used in Article XI, Section 4.C., of the AFSCME

Contract.

2 Article XIII, Section 6., of the AFSCME Contract discusses

"extended sick leave without pay." It provides as follows:

Extended leave without pay for illness of

the employee constitutes a protection of

one's employment rights. Such leave shall

be granted only for health of self or family

member, provided the fo llowing requirements

are met:

A. Employees seeking such leave must make

application on the form provided by

Personnel Management and Services.

B. Such application must be supported and

accompanied by the following:

1. identity of person in ill health ;

2. statement from physician explaining why

such leave is necessary; and

3. effective dates of requested leave

(beginning and ending).

C. Such leave shall not exceed a year in

duration.

D. Employees on leave may, upon expiration

of leave, apply fo r an extension. The

employer may grant such extension as

warranted; however, the maximum time an

employee may be absent on leave for illness

of self, illness of relative, or any

combination thereof shall be three years.

There is no indication in the reco rd that Respondent at any time

applied for "extended sick leave without pay."

3 "A county school board is a state agency falling within

Chapter 120 for purposes of quasi - judicial administrative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

4 Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement.

5 Notwithstanding the hold ing in Rosario v. Burke , 605 So. 2d

523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non -

certified School Board employee is not governed by the

provisions of Section 231.36(6)(b), Florida Statutes. In

Rosario , the Second District Court of Appeal prov ided the

following explanation for its holding that the provisions of

Section 231.36(6)(b), Florida Statutes, were applicable to non -

certified district school board personnel:

We are not completely convinced that the

legislature initially intended the nar row

grounds for dismissal described in section

231.36(6)(b) to apply to nonprofessional

supervisory staff, as compared to

principals, assistant superintendents and

other certified positions. Nevertheless,

the statute was interpreted to include such

public employees in 1981, after the

enactment of section 447.201 - .609, which

applies generally to public employees. See

Smith v. School Bd. of Leon County , 405 So.

2d 183 (Fla. 1st DCA 1981). Section 231.36

was amended after the Smith decision without

any disa pproval of that decision. If the

statute requires modification or

clarification concerning nonprofessional

supervisory school personnel, that change

should occur in the legislature.

Subsequent to the Second District's decision in Rosario , the

1994 Florid a Legislature enacted Section 231.3605, Florida

Statutes, which provides that an "educational support employee"

may be terminated "for reasons stated in the collective

bargaining agreement, or in district school board rule in cases

where a collective barga ining agreement does not exist" and

further prescribes the procedure that must be followed "[i]n the

event a superintendent seeks termination of an [educational

support] employee." In view of the enactment of Section

231.3605, Florida Statutes, the provis ions of Section

231.36(6)(b), Florida Statutes, can no longer be reasonably

construed as being directly applicable to non - certified school

board personnel.

6 It is therefore unnecessary to determine whether there are

also grounds to terminate Respondent for "disciplinary cause,"

within the meaning of Article XI, Section 4.C., of the AFSCME

Contract, as further alleged in Counts I and II of the Notice of

Specific Charges.

7 While the evidentiary record does establish that Respondent

was referred to the S chool Board's Employee Assistance Program,

it is silent as to whether she "accepted" or "refused" the

referral (as was her choice under Article IX, Section 13.F.2.,

of the AFSCME Contract).

8 Respondent was not a credible witness. The School Board

prese nted convincing evidence that not only established that

Respondent's testimony regarding the letters she claimed to have

received from the Office of the Miami - Dade State Attorney was

contrived, but also cast serious doubt on the credibility of the

remainin g portions of her testimony that were not directly

contradicted by the School Board's evidentiary presentation.

Walker v. Florida Department of Business and Professional

Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J.,

specially concurring ) ( " [T]he trier of fact is never bound to

believe any witness, even a witness who is uncontradicted.");

Maurer v. State , 668 So. 2d 1077, 1079 ( Fla. 5th DCA 1996)(" A

judge acting as fact - finder is not required to believe the

testimony of police officers in a suppression hearing, even when

that is the only evidence presented; just as a jury may

disbelieve evidence presented by the state even if it is

uncontradicted, so too the judge may disbelieve the only

evidence offered in a suppression hearing."); and Bel lman v.

Yarmark Enterprises, Inc. , 180 So. 2d 663, 664 ( Fla. 3d DCA

1965)(" The two principal witnesses relied upon by appellant for

the proof of usury were substantially impeached and we cannot

say that the trial court was bound to accept their testimony. A

chancellor as the 'finder of fact' may find a witness who has

been impeached completely unworthy of belief, and in such

circumstances it is within his province to reject such

testimony.").

9 The Florida Supreme Court has observed that "excessive

unaut horized absenteeism presumptively hampers the operation of

a business and is inherently detrimental to an employer ."

Tallahassee Housing Authority v. Florida Unemployment Appeals

Commission , 483 So. 2d 413, 414 ( Fla. 1986); see also Pericich

v. Climatrol, Inc. , 523 So. 2d 684, 685 ( Fla. 3d DCA

1988)(" Employers still retain their traditional right to

terminate employees for legitimate business reasons, such

as . . . excessive absenteeism.").