01-004248 Miami-Dade County School Board vs. Elza Delice Status: Closed Recommended Order on Thursday, May 30, 2002.

Summary: School bus driver had more than 10 days of unauthorized leave between June 1, 2000 and June 1, 2001, and was absent three times for three or more consecutive workdays. School Board should terminate employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4248

)

ELZA DELICE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Febru ary 19, 2002, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Notice of Specific Charges filed J anuary 10, 2002, and

whether the Respondent should be dismissed from her employment.

PRELIMINARY STATEMENT

In a letter dated October 25, 2001, the Miami - Dade County

School Board ("School Board") notified Elza Delice of the School

Board's decision, taken at its October 24, 2001, meeting, to

suspend her from her employment and initiate dismissal

proceedings against her. Ms. Delice timely requested an

administrative hearing, and the School Board forwarded the

matter to the Division of Administrative Hearings for

assignment of an administrative law judge. The final hearing

was scheduled for January 8, 2002, but was continued and held on

February 19, 2002.

In a Notice of Specific Charges served on Ms. Delice on

December 7, 2001, and filed with the Division of A dministrative

Hearings on January 10, 2002, the School Board charged

Ms. Delice in Count I with excessive absenteeism and abandonment

of position, in violation of Articles II and XI of the AFSCME

contract and Sections 230.03(2), 230.23(5)(f), 231.3605, and

447.209, Florida Statutes; in Count II with deficient or

non - performance of job responsibilities, in violation of

Articles II and IV of the AFSCME contract, School Board

Rules 6Gx13 - 4E - 1.01 and 6Gx13 - 3E - 1.10 , and Sections 230.03(2),

230.23(5)(f), 231.360 5, and 447.209, Florida Statutes; and in

Count III with conducting herself in a manner that failed to

reflect credit on the school system, in violation of Articles II

and IV of the AFSCME contract, School Board Rule 6Gx13 - 4A - 1.12 ,

and Sections 230.03(2), 2 30.23(5)(f), 231.3605, and 447.209,

Florida Statutes.

At the hearing, the School Board presented the testimony of

Susan Lilly, Mary Murphy, Aned Candales, n é e Lamboglia, and

Barbara Moss. Petitioner's Exhibits 5 through 11, 13 through

20, and 22 were offe red and received into evidence. Ms. Delice

testified in her own behalf and presented the testimony of

Barbara Moss. Respondent's Exhibits 1 through 4 were offered

and received into evidence.

On March 4, 2002, the School Board filed a motion to strike

Res pondent's Exhibit 1, which is the deposition testimony of

Dr. Schettino. Ms. Delice filed her response on March 12, 2002,

and an order was entered denying the motion on April 1, 2002.

The one - volume transcript of the record was filed with the

Division of Administrative Hearings on April 10, 2002, and the

parties timely submitted proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evide nce presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board is responsible for operating,

controlling, and supervising the free public schools in the

Miami - Dade County school district and has the power to suspend

and dismiss employees. Article IX, Section 4(b), Florida

Constitution; Sections 230.03(2) and 230.23(5)(f), Florida

Statutes.

Background

2. Ms. Delice was employed by the School Board as a school

bus driver trainee in May 1997. She successfully completed her

training and was duly placed on permanent status as a bus driver

for the Miami - Dade County school system.

3. Ms. Delice is a member of the American Federation of

State, County, and Municipal Employees, Local 1 184, and she is

subject to the Contract Between the Miami - Dade County Public

School and the American Federation of State, County, and

Municipal Employees, Local 1184, effective from July 1, 2000,

through June 30, 2003 ("Union Contract").

4. In 1998, when Ms. Delice was working at the School

Board's Southern Regional Transportation Center, she came to

know Rhonda Ferguson, another bus driver working at this

facility. Ms. Ferguson began making overtures to Ms. Delice,

asking for her phone number and general ly acting, in

Ms. Delice's estimation, like a co - worker who wanted to become

friends.

5. A co - worker who had overheard a conversation between

Ms. Delice and Ms. Ferguson told Ms. Delice that Ms. Ferguson

was a lesbian. Ms. Delice became very upset, and, even though

Ms. Ferguson had never made any physical or overt verbal

advances, Ms. Delice concluded that Ms. Ferguson was harassing

her and that she was being subjected to working in a "hostile

environment." Ms. Delice told Ms. Ferguson to leave her alone ,

but she did not complain to her supervisors that, in her

estimation, Ms. Ferguson was bothering her.

6. Ms. Delice was subsequently transferred to the

Southwest Regional Transportation Center ("the Southwest

facility"), and, about eight months later, Ms . Ferguson was

transferred to the Southwest facility as well.

7. A co - worker told Ms. Delice that Ms. Ferguson was

spreading stories about Ms. Delice to the effect that the two

women were having an affair. On January 20, 1999, Ms. Delice

confronted Ms. F erguson in the workplace, and the two women

became involved in a verbal and physical altercation.

8. After the altercation, Ms. Delice was temporarily

transferred to the Central West Regional Transportation Center

("the Central West facility"). An invest igation was conducted,

and the charges against Ms. Delice and Ms. Ferguson were

substantiated. Although a 30 - day suspension without pay was the

recommended discipline, it was finally decided that Ms. Delice

and Ms. Ferguson would be permanently assigned t o the location

of their alternate assignments. Accordingly, Ms. Delice was

permanently transferred to the Central West facility in

February 1999.

9. Although Ms. Delice knew she was "somewhat" emotionally

affected by the advances of Ms. Ferguson, it was the transfer to

the Central West facility that "turned her whole life upside

down." 1 Ms. Delice was distressed at the condition of the

physical plant at the Central West facility, and she described

it as a "boot camp." Ms. Delice complained that the road

leading into the facility was narrow and very dark, with rocks

on one side and a lake on the other; that the location was

unsafe; that there were potholes in the gravel lots where the

buses were kept; that the gravel lots turned to mud when it

rained and were very dusty when it was dry; that the lighting

was non - existent; that she was required to park in the employee

parking lot and walk a half - block to the office to pick up her

bus assignment and another half - block to her bus, often in the

mud; that there were mosquitoes and frogs on the buses, and she

had to be careful not to sit on a frog; and that something,

maybe asbestos, was coming out of the walls of the employee

break room.

10. Ms. Delice blames Ms. Ferguson for her transfer to the

Central West fa cility, and she thinks that she should have been

disciplined for the altercation in January 1999 rather than

transferred to the Central West facility.

11. Finally, Ms. Delice called Barbara Moss, a District

Director of the School Board's Office of Profess ional Standards,

and asked if she could be transferred back to the Southwest

facility. Ms. Delice told Ms. Moss that she had transportation

problems because she drove an old car that was always breaking

down because of the bad roads at the Central West fa cility and

that the Southwest facility was closer to Ms. Delice's home than

the Central West facility. Ms. Moss secured a transfer for

Ms. Delice back to the Southwest facility, effective in

March 2000. Ms. Delice did not mention any emotional problems,

stress, or poor working conditions to Ms. Moss.

12. Ms. Delice worked at the Southwest facility until she

was suspended by the School Board on October 24, 2001, pending

initiation of dismissal proceedings.

Absences

13. Each year, school bus drivers rece ive a copy of the

Handbook for School Bus Drivers, Aides and Operations Staff

("Handbook"), and Ms. Delice's supervisor at both the Central

West facility and the Southwest facility went over the Handbook

with employees at the beginning of each school year. Section 9

of the Handbook describes in detail the attendance policy for

transportation employees.

14. A bus driver working for the School Board accrues a

total of ten days combined paid sick and personal leave each

school year.

15. Between December 1, 1999, and June 1, 2000, Ms. Delice

took 64 days of unauthorized leave without pay, 11.5 days of

authorized leave without pay, and six days of paid sick/personal

leave.

16. Between August 28, 2000, and June 13, 2001, Ms. Delice

took 26.5 days of unauthoriz ed leave without pay, 21 days of

authorized leave without pay, and ten days of paid sick/personal

leave. Ms. Delice was absent without authorization on three

consecutive workdays on January 17, 18, and 19, 2001;

February 1, 2, 5 and 6, 2001; and May 30 an d 31 and June 1,

2001.

17. Between August 28, 2001, and October 24, 2001, the

date of her suspension, Ms. Delice had three days of

unauthorized leave without pay, one day of authorized leave

without pay, and seven days of paid sick/personal leave.

Betwee n August 28, 2001, and October 10, 2001, the date

Ms. Delice was advised that the superintendent was recommending

her termination, Ms. Delice took six days of paid sick/personal

leave, but no days of either authorized or unauthorized leave

without pay.

Re minders and Conferences for the Record

18. On October 25, 1999, Michael Exelbert, a coordinator

at the Central West facility, issued to Ms. Delice a Notice of

Performance Expectation Requirement, Attendance (Follow - Up

Verbal), in which Ms. Delice was iss ued a verbal reminder of her

responsibilities with respect to attendance. She was referred

to Article XI, Section 4, page 32, and Article V, Section 27,

page 8, of the Union Contract.

19. On December 8, 1999, Mary Murphy, the Director of the

Central West facility, issued to Ms. Delice a Notice of

Performance Expectation/Requirement, in which Ms. Delice was

again reminded of the expectation regarding attendance,

specifically with respect to her being absent without leave

after not calling or showing up for work on November 15, 17,

and 23, 1999. Ms. Delice was again referred to Article XI,

Section 4, page 32, and Article V, Section 27, page 8, of the

Union Contract.

20. On February 7, 2000, Mr. Exelbert conducted a

Conference for the Record with respect to Ms. Delice's "no

call/no show" absences without leave on September 13, 15, 19,

and 21, 1999; November 15, 17, and 23, 1999; December 16, 1999;

and January 3, 2000. As set forth in the summary of the

conference, Ms. Delice explained her absences as follow s: "You

indicated that you had had car problems, had a problem with the

staff in Dispatch, and that every once in a while you needed a

day off." As a result of documentation provided by Ms. Delice,

September 19 and November 23, 1999, were removed as abse nces

without leave. Ms. Delice was referred to Section 9 of the

transportation employee's Handbook for the applicable attendance

policy.

21. On June 1, 2000, after her March 2000 transfer to the

Southwest facility, a Conference for the Record was conduct ed by

Aned Lamboglia, a coordinator at the Southwest facility, with

respect to Ms. Delice's unauthorized absences subsequent to

September 1, 1999. Ms. Lamboglia reviewed Ms. Delice's

attendance record and identified 53.5 days of unauthorized leave

without pay, 11 days of authorized leave without pay, and six

days of paid sick/personal leave between September 1, 1999, and

June 1, 2000; Ms. Lamboglia also noted that Ms. Delice had

missed "at least" 10.5 days of work since she was transferred to

the Southwest facility in March 2000.

22. As set forth in the summary of the June 1, 2000,

conference, Ms. Delice explained her absences as follows:

You stated that some of your unauthorized

absences were due to the fact that you had

serious transportation problems. You were

administratively transferred to Central West

Transportation and this had caused a serious

hardship for you since the vehicle you drove

kept breaking down. You also stated that

you were not aware that you could provide

documentation for authorizat ion of leave

time when you did not have sick or personal

time.

Ms. Lamboglia advised Ms. Delice during the conference that her

attendance record was unsatisfactory, and she reviewed with

Ms. Delice Article XI, Section 4, and Article V, Section 27, of

the Union Contract. She also advised Ms. Delice that failure to

improve her attendance could lead to further disciplinary

action.

23. On June 1, 2000, Ms. Lamboglia also referred

Ms. Delice to the School Board's Employee Assistance Program

("EAP"). Ms. Lamb oglia received notification from the clinical

coordinator of the EAP, dated July 21, 2000, that Ms. Delice's

case had been closed after Ms. Delice failed to attend a

scheduled conference and denied that she had any job performance

problems.

24. On October 25, 2000, Ms. Lamboglia, then

Mrs. Candales, conducted a Conference for the Record with

respect to Ms. Delice's unauthorized absences subsequent to

June 1, 2000. Ms. Lamboglia reviewed Ms. Delice's attendance

record and identified four and one - half days of unauthorized

leave without pay, with two and one - half days of the total

occurring during the new school year. According to the summary

of the conference, Ms. Delice had nothing to say regarding these

absences. Ms. Candales reviewed with Ms. Delice Art icle XI,

Section 4, and Article V, Section 27, of the Union Contract, and

she advised Ms. Delice that failure to improve her attendance

could lead to further disciplinary action. In light of her

June 1, 2000, referral of Ms. Delice to the EAP, Ms. Candale s

did not make a referral after the October 25, 2000, conference.

25. On April 23, 2001, Mrs. Candales conducted a

Conference for the Record with respect to Ms. Delice's

unauthorized absences subsequent to October 25, 2001.

Ms. Lamboglia reviewed Ms. Del ice's attendance record and

identified approximately 18 days of unauthorized leave without

pay. According to the summary of the conference, Ms. Delice

explained her unauthorized absences by stating that she

continued to experience car problems. Ms. Delic e provided

Mrs. Candales with documentation, and Mrs. Candales agreed to

authorize four days of the 18 days of leave without pay.

Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and

Article V, Section 27, of the Union Contract, and she advise d

Ms. Delice that her absences were excessive under Article XI,

Section 4, of the Union Contract and could lead to disciplinary

action such as termination or non - reappointment. In addition,

Ms. Candales referred Ms. Delice to the EAP on April 23, 2001.

26 . On June 8, 2001, Ms. Murphy, who had transferred from

the Central West facility and was Director of the Southwest

facility, conducted a Conference for the Record with respect to

Ms. Delice's job performance in the area of attendance.

Ms. Murphy noted t hat Ms. Delice had accumulated 25.5 days of

unauthorized leave without pay since the beginning of the school

year. According to the summary of the conference, Ms. Delice

gave the following explanation:

You mentioned during the conference that

sometimes yo ur car breaks down and you

cannot make it to work. Also, if you are

not feeling well you do not come to work.

You are currently participating with the

District Support Agency, and you are waiting

for Mr. Portier to send you to a

psychiatrist. You stated that you requested

to see a psychiatrist because of the

conditions at Central West Transportation.

According to you, you began to have

attendance problems when you were

transferred to "Boot Camp": A.K.A., Central

West Transportation. Being at this locat ion

caused you to have emotional stress. Prior

to going to Central West Transportation, you

did not have an attendance problem. You

explained that during 1997 through 1999, you

did not have an attendance problem. . . .

You also mentioned that Mr. Portier 's

services did not meet your problem because

your problems were financial.

27. Ms. Murphy reviewed with Ms. Delice Article XI,

Section 4(B) of the Union Contract, which provides that

unauthorized absences for three consecutive workdays or for ten

days d uring the previous 12 - month period were grounds for

termination. Ms. Delice was advised that a copy of the summary

of the conference would be sent to the Administrative Director,

Jerry Klein, and to the Office of Professional Standards for

review and poss ible disciplinary action.

28. In a memorandum dated June 20, 2001, Mr. Klein

recommended to Ms. Moss at the Office of Professional Standards

that Ms. Delice be dismissed from her employment with the School

Board because she had "accumulated 25.5 days of u nauthorized

leave without pay."

29. On July 23, 2001, Ms. Moss conducted a Conference for

the Record with respect to Ms. Delice's "excessive absenteeism;

non - performance and deficient performance of job

responsibilities; violation of School Board Rules 6G x13 - 4A - 1.21 ,

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

Leaves." Ms. Delice's record was reviewed, and her future

employment status with the School Board was discussed. Ms. Moss

identified total absences between September 1, 2000, and J une 8,

2001, of 54.5 days, consisting of 23 days of unauthorized leave

without pay, 21.5 days of authorized leave without pay, six

personal, and four sick days.

30. According to the summary of the conference, Ms. Delice

explained her unauthorized absences as follows: "'My problem

with attendance started when I was sent to the 'boot camp' at

Central West Transportation. That center is very depressing and

dusty.'" In response to the observation that the purpose of the

conference was to discuss Ms. Delice' s attendance problem at the

Southwest facility, Ms. Delice replied: "'I'm just getting over

the conditions I was subjected to at Central West

Transportation. I feel that I am not being given a chance to

improve.'"

31. Ms. Delice was advised that, once a review of the

relevant materials was completed, she would be notified of the

recommended disciplinary action. Ms. Moss further advised

Ms. Delice that "[a]ll disciplinary action(s) shall be

consistent with the concepts and practice of progressive or

corr ective discipline. The degree of discipline shall be

reasonably related to the seriousness of the offense and the

employee's record."

32. Ms. Delice was referred through the EAP to Dr. Lynne

Schettino, a psychologist. Dr. Schettino initially assessed

Ms . Delice on August 17, 2001, and Dr. Schettino saw her in

individual sessions on August 28, 2001, and September 11, 2001;

Ms. Delice cancelled two additional scheduled appointments with

Dr. Schettino and did not reschedule. Ms. Delice identified

absenteei sm as a major problem, attributing it to "a transfer to

another location [that] had been very stressful for her and that

this resulted in significant anxiety, depression and avoidant

behavior." 2 Dr. Schettino determined that Ms. Delice's treatment

should focus on coping with work stressors and developing

interpersonal skills "to allow appropriate adjustment to the

work place," 3 but Dr. Schettino did not have time to reach a

diagnosis or develop a treatment plan for Ms. Delice.

Ms. Delice entered into a "c ontract" with Dr. Schettino

regarding her attendance, and, although she took six days of

sick/personal leave between August 28, 2001, and October 10,

2001, Ms. Delice had no days of authorized or unauthorized leave

without pay.

33. In a letter dated Octob er 10, 2001, Ms. Delice was

notified by the Superintendent that he was recommending to the

School Board that she be suspended from her employment and

dismissal proceedings initiated against her for

just cause, including but not limited to:

excessive absen teeism; abandonment of

position; non - performance and deficient

performance of job responsibilities;

violation of School Board Rules 6Gx13 - 3E -

1.10 , Transportation - Specific Procedures

(Attendance Policy); 6Gx13 - 4A - 1.12 ,

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

Absences and Leaves."

The Superintendent also noted that the dismissal recommendation

was taken in accordance with, among other things, Article XI,

Section 4(B) and (C), of the Union Contract.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2001.

35. The School Board has the authority to suspend or

dismiss school employees pursuant to S ection 230.23(5)(f),

Florida Statutes, and it is granted the express power to adopt

rules to govern personnel matters, including the "duties and

responsibilities of all district employees." Section 231.001,

Florida Statutes. Furthermore, public employers such as the

School Board have the authority to "direct employees, take

disciplinary action for proper cause, and relieve its employees

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

Section 447.209, Florida Statutes.

36. Ms. Delice is a permanent "educational support

employee" as that term is defined in Section 231.3605(1)(a),

Florida Statutes. Section 231.3605(2), Florida Statutes,

provides as follows:

(b) Upon successful completion of the

probationary period by the employee, the

empl oyee'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 board rule in cases where a

collective bargaining agreement does not

exist . . . .

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeal 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.

37. School Board Rule 6Gx13 - 4E - 1.01 governs absences and

leaves and provi des in pertinent part: "Except for sudden

illness or emergency situations, any employee who is absent

without prior approval shall be deemed to have been willfully

absent without leave."

38. The Handbook for School Bus Drivers, Aides and

Operations Staff , adopted as School Board Rule 6Gx13 - 3E - 1.10 ,

governs attendance policy for transportation employees and

provides in pertinent part as follows:

9.1 AUTHORIZED ABSENCES

For absences to be authorized, they must be

reported to the driver's or aide's

Transpo rtation Center Dispatch Office in

advance. This notice must 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

super visory staff evaluates 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 prescribed 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 o ff is taken during a

regular working school day without a

supervisor's approval, this absence also may

be considered unauthorized.

* * *

9.4 CHECK - IN POLICY

* * *

- Drivers and aides who report to work 16

or more minutes after the scheduled report

ti me will be considered "absent without

leave" (AWOL). These persons will not be

permitted to work. They will be placed on

"unauthorized leave - without - pay" (ULWOP) and

will be subject to disciplinary action in

accordance with the American Federal 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 brok e down for the third time

this week," will not be considered

extenuating.

39. Article V, Section 27, of the Union Contract defines

"unauthorized absence" as follows:

Any absence without pay which has not

been requested by the employee and approved

b y 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 charged as unauthorized absence and may

result in disciplinary action in accordance

with Article XI. Upon the employe e

reporting back to work, the employee shall

be apprised of the unauthorized leave

status; however, if the employee can

demonstrate that there were extenuating

circumstances (e.g., hospitalization or

other unanticipated emergency), then

consideration will be given to changing the

status of leave. The work location

supervisor has the authority to change an

unauthorized leave; however, nothing herein

precludes requested leave being determined

to be unauthorized where the employee does

not have available sick or sufficient

personal leave.

40. Article XI, Section 4, of the Union Contract, provides

in pertinent part:

Dissolution of the employment relationship

between a permanent unit member and the

Board may occur by any of four distinct

types of separation.

* * *

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 b e

evidence of excessive absenteeism. Either

of the foregoing shall constitute grounds

for termination. . . .

C. Disciplinary -- The employee is

separated by the employer for disciplinary

cause arising from the employee's

performance or non - performance o f job

responsibilities. Such action occurs at any

necessary point in time.

* * *

The factors most important in determining

what type of separation occurred for a given

employee are: which party initiated the

action; what time of the work year the

action occurred; and the employer's

expressed intent.

(Emphasis added.)

41. Because this case is a proceeding to terminate

Ms. Delice's employment with the School Board and does not

involve the loss of a license or certification, the School Board

has the burd en of proving the allegations in the Notice of

Specific Charges by a preponderance of the evidence. McNeill v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

Allen v. School Board of Dade County , 571 So. 2d 568, 569 (Fla.

3d DCA 1990); D ileo v. School Board of Lake County , 569 So. 2d

883 (Fla. 3d DCA 1990).

42. It is clear from the evidence presented by the School

Board that the primary basis for the School Board's decision to

initiate proceedings to dismiss Ms. Delice from her employmen t

with the School Board was excessive absenteeism and abandonment

of position, as defined in Article XI, Section 4(B), of the

Union Contract.

43. The School Board has satisfied its burden of proving

by a preponderance of the evidence that Ms. Delice was, on

several occasions, absent without authorization for three

consecutive workdays on three separate occasions in 2001 and

that she was absent without authorization for substantially more

than ten workdays during the 12 - month period extending from

June 1, 2 000, to June 1, 2001. 4 Consequently, the School Board

may terminate Ms. Delice in accordance with the provisions of

Article XI, Section 4(B), of the Union Contract. 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is REC OMMENDED that the Miami - Dade County School Board

enter a final order finding Elza Delice guilty of abandonment of

position and excessive absenteeism, sustaining her suspension

effective October 24, 2001, and terminating her employment.

DONE AND ENTERED thi s 30th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 30th day of May, 2002.

ENDNOTES

1 / Transcript at 133.

2 / Respondent's Exhibit 4.

3 / Id.

4 / Even if the reasons given by Ms. Delice for her absences were

relevant to the School Board's decision to terminate her for

abandonment of position and excessive absenteeism, the reasons

given by Ms. Delice are, at best, unpersuasive and are certainly

i nsufficient to justify her many unauthorized absences.

5 / By both its terms and its context, Article XI, Section 4(B),

of the Union Contract provides a basis for termination of

employment that is distinct from termination as a form of

disciplinary action . It is, therefore, unnecessary to address

the issue of whether the School Board has a disciplinary basis

under Article XI, Section 4(C), of the Union Contract for

terminating Ms. Delice from her employment as alleged in Counts

II and III of the Notice of Specific Charge.

COPIES FURNISHED:

John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Stree t, Suite 224

Miami, Florida 33128

Charlie Crist, Commissioner

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

Merritt R. Stierheim, Interim Superintendent

Department of Education

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.