02-000336
Marion County School Board vs.
Pam Lemieux
Status: Closed
Recommended Order on Monday, June 3, 2002.
Recommended Order on Monday, June 3, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MARION COUNTY SCHOOL BOARD, )
13)
14Petitioner, )
16)
17vs. ) Case No. 02 - 0336
24)
25PAM LEMIEUX, )
28)
29Respondent. )
31)
32RECOMMENDED ORDER
34A formal hearing was conducted in this case on April 5,
452002, in Ocala, Florida, before Suzanne F. Hood, Administrative
54Law Judge, with the Division of Administrative Hearings.
62APPEARANCES
63For Petitioner: William C. Haldin, Jr. Esquire
70William C. Haldi n, Jr., P.A.
76808 Southeast Fort King Street
81Ocala, Florida 34471
84For Respondent: Mark Herdman, Esquire
89Herdman & Sakellarides, P.A.
932595 Tampa Road, Suite J
98Palm Harbor, Florida 34684
102STATEMENT OF THE ISSUE
106The issue is whether Petitioner should terminate
113Respondent's employment because she excessively used the
120internet for personal matters unrelated to her work while she
130was on duty at her a ssigned computer terminal.
139PRELIMINARY STATEMENT
141On January 8, 2002, Petitioner Marion County School Board
150(Petitioner) entered an Order of Suspension Without Pay against
159Respondent Pam Lemeiux (Respondent). Petitioner entered an
166Acceptance of Request for Hearing on January 23, 2002, and
176referred the case to the Division of Administrative Hearings on
186January 24, 2002.
189A Notice of Hearing dated February 12, 2002, scheduled the
199case for hearing on April 5, 2002.
206During the hearing, Petitioner presen ted the testimony of
215three witnesses and offered the following exhibits, which were
224accepted into evidence: P1, P2a, P2b, P3, P7, P7a, P7b, P10,
235P11, and P12.
238Respondent testified on her own behalf and presented the
247testimony of three additional witnesse s. Respondent offered
255Exhibits R1, R2, and R3, which were accepted into evidence.
265A Transcript of the proceeding was filed on April 30, 2002.
276The parties filed their Proposed Recommended Orders on May 20,
2862002.
287FINDINGS OF FACT
2901. Petitioner is the go verning board of the Marion County
301School District.
3032. At all times material to this proceeding, Petitioner
312had a written internet usage policy for its employees. The
322policy states as follows in pertinent part:
329District computers, network access, and
334other information resources such as
339electronic mail (e - mail) are provided for
347staff use to support the District mission
354and goals. All such resources are District
361property, and subject to the same rules for
369use as other physical property. In
375addition , the following rules shall apply:
381(1) Use of information resources shall be
388limited to legitimate educational purposes.
393Programs for personal, commercial, or
398illegal purposes, including games, are not
404authorized.
405(2) E - mail, World Wide Web pa ges, and
415other forms of electronic documentation:
420(a) Will not be obscene, abusive, or
427contain other inappropriate material.
431(b) Will require the same handling as
438other public records.
441(3) User accounts and passwords must not
448be shared except w here authorized. The
455person in whose name an account is issued in
464responsible for its proper use at all times.
472(4) Copyright and license agreements will
478be respected; no unauthorized copies of
484programs or files will be made.
490(5) Users shall not take unauthorized
496actions which gain access or attempt to gain
504access to, deny access or attempt to deny
512access to, disrupt, change, or destroy the
519data or service of the computer or network
527systems.
5283. However, the written policy was not disseminated or
537discussed with Respondent or any other employees. Instead,
545Petitioner's employees generally understood that they could use
553the internet for personal reasons during their two 15 - minute
564breaks and their one - hour lunch break for a total of one and a
579half ho urs a day.
5844. Respondent worked for Petitioner for 12 years. She
593began working as a data entry clerk in the Applied Technology
604Department. In time, Respondent was promoted to the position of
614a computer lab technician in the same department.
6225. Re spondent's job involved gathering data on students in
632Petitioner's middle and high school vocational programs and
640electronically transmitting the information to the Florida
647Department of Education (DOE). Her primary job required her to
657code and edit the i nformation, correcting any problems
666identified by DOE so that Petitioner could receive the
675appropriate funding for its vocational programs.
6816. Respondent required more time to complete her primary
690duties at certain times of the year depending on DOE re porting
702requirements. At other times of the year, Respondent was able
712to complete her work with time to spare.
7207. Kathy Clarke worked with Respondent in the Applied
729Technology Department. Respondent showed Ms. Clarke and other
737people in the department how to protect the privacy of the
748department's computers by using a screen - saver password.
757Ms. Clarke chose "kiss" as the screen - saver password. Several
768employees, including Respondent, used the same screen - saver
777password so that, if necessary, they could access each other's
787computers.
7888. In June 1999, Petitioner furnished Respondent with a
797new Mackintosh desk - top computer that was delivered without the
808appropriate internal zip drive. Respondent immediately
814installed a software password protecti on program on her
823computer.
8249. When Petitioner received the zip drive for Respondent's
833computer, Petitioner arranged for outside computer technicians
840to install it. Respondent was not in the office when the
851outside computer technicians arrived. The ou tside computer
859technicians and Kathy Clarke waited 45 minutes for Respondent to
869return to the office because they did not know the software
880password to access Respondent's computer. When Respondent
887returned to her office, she installed the zip drive herse lf.
89810. At or near the end of 1999, Petitioner transferred
908Respondent from the Applied Technology Department to the
916Management Information Services (MIS) Department. The transfer
923from one department to another required the physical relocation
932of Respon dent's desk and computer, but her duties in relation to
944transmitting information to DOE for the vocational programs
952remained the same.
95511. Anthony Burke became Respondent's supervisor in the
963MIS Department. He assigned Respondent additional duties on an
972as needed basis. These duties included answering the phone,
981passing out maps, mailing out notices, scanning records,
989greeting walk - in clients, and generally helping her co - workers
1001when they got behind in their work. On some occasions,
1011Respondent willing ly accepted these assignments; on other
1019occasions, she acted as if she resented doing any work except
1030her primary responsibility of transmitting vocational
1036educational data. In the latter event, Respondent would tell
1045her supervisor that she was too busy t o perform other duties.
105712. When Respondent set up her workstation in the MIS
1067Department, she located her computer monitor with the screen
1076facing a storage area. The position of the monitor made it
1087difficult for others in the office to casually observe the
1097monitor's screen.
109913. In April or May 2001, Mr. Burke decided to reconfigure
1110the workstations within the MIS Department so that employees
1119with highly specialized work would not be located in the flow of
1131walk - in traffic. The reconfiguration of the workstations
1140resulted in Respondent being moved to the front of the office
1151and next to Tanya Eason. Respondent objected to being placed
1161next to Ms. Eason with whom Respondent had a personality
1171conflict.
117214. Respondent informed Mr. Burke about her disple asure
1181over the move to the front of the office. She claimed that
1193being in the new location with an obligation to back up
1204Ms. Eason, the "office secretary and greeter," would interfere
1213with Respondent's duties related to vocational programs.
1220Mr . Burke responded that he intended to proceed with the
1231reconfiguration plan as soon as possible.
123715. Respondent had a personal relationship with Jim
1245Warford, Superintendent of Marion County School District,
1252because he had taught Respondent's daughter. Based on that
1261relationship, Respondent had a conversation with Superintendent
1268Warford about her concerns with the changes in the MIS
1278Department.
127916. Subsequently, Mr. Burke became aware that Respondent
1287had spoken to Superintendent Warford about problems in the MIS
1297Department. After discussing his concerns with Respondent and
1305for at least a couple of months, Mr. Burke did not acknowledge
1317or speak to Respondent except in the context of a departmental
1328meeting.
132917. After the reconfiguration of the workst ations in the
1339MIS Department, Mr. Burke observed that Respondent was generally
1348busy at her computer terminal. However, Respondent's
1355workstation was once again set up so that one could not observe
1367her monitor's screen without entering her work station and
1376standing behind or adjacent to her.
138218. In October 2001, Mr. Burke and Christopher Mendola,
1391Director of Information and Technology Services, discovered
1398information that led them to question whether Respondent had
1407breached Mr. Burke's e - mail security. A fter the close of
1419business on October 16, 2001, Mr. Burke and Mr. Mendola took
1430Respondent's computer off of her desk. When Respondent returned
1439to work on October 17, 2001, she had no idea why her computer
1452was missing.
145419. At approximately 4:00 p.m., on October 17, 2001,
1463Respondent attended a meeting with Mr. Mendola, Mr. Burke, and
1473Jim Noell, Petitioner's personnel director. At that time,
1481Respondent was informed that her computer was taken because she
1491had been seen trying to access Mr. Burke's e - mail i n a web
1506design class.
150820. Respondent denied that she had breached anyone's
1516e - mail security. She explained that during a web - design class,
1529her e - mail had been so easy to access through Outlook Express
1542that she used Mr. Burke's name to see if other e - mail addresses
1556were as easily accessible.
156021. During the October 17, 2001, meeting, Mr. Mendola
1569asked Respondent whether she ever used the internet for personal
1579reasons because it was inappropriate to do so on "company time."
1590Respondent replied emphat ically that she did not use the
1600internet for personal reasons.
160422. Mr. Mendola was in possession of Respondent's computer
1613for approximately one month. During that time, Respondent was
1622assigned alternative duties. Because she did not have an office
1632com puter with internet capabilities, Respondent could not
1640perform her duties related to the vocational program.
164823. Mr. Mendola had Respondent's computer placed in a
1657secure location in his office. Mr. Mendola could start the
1667computer but could not access the computer's contents due to a
1678password protection program. Respondent would not provide
1685Mr. Mendola with the password but she agreed to disable the
1696password protection program.
169924. Mr. Mendola did not find evidence that Respondent had
1709made any ef fort to access Mr. Burke's e - mail from her office
1723computer. He did find evidence that a large number of internet
1734websites, unrelated to work, had been extensively accessed on
1743Respondent's computer. Among the information stored on
1750Respondent's hard drive were "favorite" or "book - marked" sites
1760organized into categories.
176325. Mr. Mendola began looking through the cach é , a
1773temporary storage area, in Respondent's computer. In the cach é ,
1783he found pictures and documents, indicating that Respondent's
1791computer h ad accessed at least 33 internet sites. The cach é
1803contained hundreds of photographs of people from internet - dating
1813sites. The dating sites included "Welcome to Dating.com," and
"1822www.Homecams.com." Access to the "www.Homecams.com" site was
1829blocked by fi lter that Petitioner uses to prevent retrieval of
1840inappropriate internet sites.
184326. Subsequently, a second password protection program
1850appeared on Respondent's computer, preventing Mr. Mendola from
1858accessing other areas of Respondent's hard drive. Resp ondent
1867had to disable the second password protection program before
1876Mr. Mendola could proceed with his investigation.
188327. Mr. Mendola's continued investigation revealed one
1890internet site that was related to Respondent's work. The name
1900of that site was "Work Force Development."
190728. Next, Mr. Mendola performed a hard drive recovery. He
1917recovered thousands of internet files unrelated to Respondent's
1925work. Some files could not be recovered because they had been
1936written over.
193829. Mr. Mendola began lo oking for files that were
1948recoverable and so large in size as to be significant. He found
1960that approximately 25 percent of Respondent's hard drive
1968contained at least 10,000 such files. Many of these files were
1980bookmarked so they could be easily accessed at a later date.
1991The files came from internet sites related to travel, perfumes,
2001and other commercial sites, together with one education site.
201030. The files on Respondent's hard drive also included a
2020lot of "see - me cam sites" where people had cameras se t up,
2034projecting pictures from their living rooms or bedrooms every
2043five to ten minutes, or cameras to view cars crossing a bridge.
2055Some of the "see - me cam sites" that were listed in Respondent's
2068history list could not be retrieved from Mr. Mendola's offi ce
2079because of the filter that Petitioner uses to block
2088inappropriate or pornographic internet sites.
209331. During the hearing, Respondent suggested that
2100telephone repairmen who were working in the vicinity of her
2110office might have accessed her computer aft er hours. She
2120asserted that she installed a password protection program on her
2130computer at that time. This would account for Respondent's
2139having two such password protection programs on her computer.
2148However, there is no credible evidence that any acces s by the
2160repairmen would have resulted in the list of "bookmarks" and
"2170favorites" found in Respondent's hard drive. Additionally,
2177there was no credible evidence that the repairmen had access to
2188her computer during the dates and times that print - outs of he r
2202internet usage show the activity to have occurred. To the
2212contrary, Respondent had placed a password protection program on
2221her computer as early as June 1999 such that Kathy Clarke and
2233the outside computer technicians could not access Respondent's
2241compu ter.
224332. At some point in the middle of November 2001,
2253Mr. Mendola returned Respondent's computer to her desk.
2261Mr. Mendola did not tell Respondent what he had discovered on
2272her computer. Respondent was not aware that Mr. Mendola had
2282install ed a real - time monitor on the computer.
229233. During the time that Respondent's computer was being
2301monitored, Petitioner's staff made daily reports regarding
2308Respondent's internet usage. They found that her internet
2316activity involved sites that were unrel ated to work.
232534. A week or so later, Mr. Mendola informed Respondent
2335that he was going to check her computer again. He asked her not
2348to shut it off and to make sure that she disabled the password
2361protection.
236235. Mr. Mendola's second check of Responde nt's computer
2371confirmed that Respondent was using her computer to access the
2381internet for purposes unrelated to her work. For example, there
2391were many files related to furniture shopping. Mr. Mendola also
2401discovered that the hard drive had been changed s o that some
2413files previously stored on the computer were no longer located
2423there. Respondent's hard drive had been erased and started
2432over.
243336. On or about December 17, 2001, Mr. Mendola and
2443Mr. Noell had a meeting with Respondent. At that meeting ,
2453Respondent was shown printouts showing her internet usage.
2461Respondent was then suspended until the January 8, 2002, school
2471board meeting at which time it was recommended that Respondent
2481be terminated.
248337. The real - time monitoring of Respondent's compu ter
2493revealed that she used the internet extensively for personal
2502reasons during working hours. Her internet usage at these times
2512was more than the time available in a normal work day during two
252515 - minute breaks and a one - hour lunch break.
253638. It may be that Respondent's computer remained
2544connected to the internet while she performed her primary or
2554secondary duties off - line. In that case, the internet site
2565might have automatically sent additional unsolicited messages
2572and files that were stored in Respond ent's hard drive. At
2583times, Respondent might have used the internet beyond the time
2593allotted for breaks and lunch when she completed her job
2603assignments. However, Respondent admitted during the hearing
2610that she used the internet as much as four hours a d ay, or
2624perhaps as much as all day, during the time that she was
"2636looking for furniture."
263939. Petitioner has always been satisfied with Respondent's
2647job performance. With the exception of one performance
2655evaluation in May 2001, Respondent has received t he highest
2665evaluation possible from her supervisors. In May 2001,
2673Respondent received a "satisfactory" performance rating in
2680teamwork skills and an "excellent" performance rating in all
2689other areas.
269140. There is no evidence that Respondent's internet usage
2700ever interfered with the performance of her primary duties
2709relating to the transmission of vocational school program data
2718to DOE. However, Respondent knew or should have known that
2728Mr. Burke would have assigned her additional duties for the good
2739o f the department if he had known she was using so much of her
2754time for personal activities after completing her assigned work.
2763In fact, Mr. Burke testified that he would have told her to
"2775knock it off" because such extensive internet usage was
2784equivalent to reading a novel, watching television, or making
2793personal telephone calls for several hours a day.
280141. Section 5.02 of the Collective Bargaining Agreement
2809between Petitioner and the Marion Essential Support Personnel
2817states that "[n]o bargaining unit member shall be disciplined
2826without just cause." The agreement also contains a procedure
2835know as "NEAT." This procedure, which is set forth in Section
28465.03 of the Collective Bargaining Agreement, states as follows
2855in pertinent part:
2858Section 5.03 Exc ept in emergency
2864situations and situations which threaten the
2870health and safety of students or other
2877employees, the NEAT procedure will be used
2884when disciplining members of the bargaining
2890unit or when a deficiency is defined. The
2898NEAT Procedure is defined as follows:
2904N - Notice - when a deficiency is defined,
2913the building administrator will provide the
2919employee with written notification of the
2925deficiency.
2926E - Explanation and Expectation - the
2933building administrator will include in the
2939written notific ation the nature of the
2946deficiency and the performance level
2951expected.
2952A - Assistance - the building
2958administrator will include in the written
2964notification where information can be
2969obtained to help the employee improve and/or
2976will provide other forms of assistance as
2983appropriate.
2984T - Time - the building administrator will
2992define for the employee an appropriate time
2999frame for improvement to occur before any
3006disciplinary action is taken.
301042. Petitioner did not use the NEAT procedure before
3019suspending Res pondent's employment. Mr. Mendola admitted during
3027the hearing that Respondent's internet usage did not involve an
3037emergency situation or threaten the health and safety of
3046students or other employees. He also admitted that under the
3056Collective Bargaining Agreement, he did not have discretion to
3065ignore the NEAT procedure when disciplining an employee.
307343. Mr. Mendola was aware of the NEAT procedure; he had
3084used it with other employees. In this case he did not implement
3096the procedure because of Respondent 's denials that she had ever
3107used the internet for personal reasons. According to
3115Mr. Mendola, Respondent's lack of truthfulness precluded the
3123benefit of any assistance he could have provided Respondent in
3133correcting her behavior pursuant to the N EAT procedure.
314244. Article 4.00 of the Collective Bargaining Agreement
3150sets forth a four - step grievance procedure, the last of which is
3163binding arbitration. Section 4.10 of the Collective Bargaining
3171Agreement states as follows in pertinent part:
3178Se ction 4.10 For the purposes of this
3186Article, the term "grievance" means any
3192dispute between the Employer and one or more
3200employees involving the interpretation or
3205application of the current Collective
3210Bargaining Agreement. The following matters
3215shall not be the basis of any grievance
3223filed and/or processed under the Grievance
3229Procedures of this Agreement.
3233* * *
32363. Any complaint respecting termination
3241of employment for which there is another
3248remedial procedure or forum established by
3254law or regulation having the force of
3261law . . . .
3266CONCLUSIONS OF LAW
326945. The Division of Administrative Hearings has
3276jurisdiction over the parties and the subject matter of this
3286proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
329346. Pursuant to case law and the stipulation of the
3303parties, Petitioner has the burden of proving by a preponderance
3313of the evidence that Petitioner has "just cause" to terminate
3323Respondent's employment. Department of Transportation v. J.W.C.
3330Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Neither the
3342statutes nor the Collective Bargaining Agreement defines "just
3350cause."
335147. Florida law establishes Petitioner's right to suspend
3359or dismiss its non - instructional employees like Respondent.
3368Sections 230.23(5)(f) and 231.3605, Flor ida Statutes. Section
3376231.3605(2)(c), Florida Statutes, states as follows:
3382(c) In the event a superintendent seeks
3389termination of an employee, the school board
3396may suspend the employee with or without
3403pay. The employee shall receive written
3409notice a nd shall have the opportunity to
3417formally appeal the termination. The
3422appeals process shall be determined by the
3429appropriate collective bargaining process or
3434by school board rule in the event there is
3443no collective bargaining agreement.
344748. Section 3.0 0 of the Collective Bargaining agreement
3456provides as follows in pertinent part:
3462Section 3.10 It is expressly understood
3468and agreed between the Union and the
3475Employer that the right to direct employees
3482of the Board, to hire, promote, transfer,
3489assign a nd retain employees and to suspend,
3497demote, discharge or take other disciplinary
3503action against employees subject only to
3509express provisions respecting such matters
3514in the Agreement, shall be solely and
3521exclusively within the responsibility of the
3527Employer subject to provision of State
3533Regulation, and the law of Florida and the
3541United States.
3543Section 3.11 It is expressly understood
3549and agreed between the Union and the
3556Employer that the right to relieve employees
3563from duty because of lack of work or for
3572o ther legitimate reasons . . . shall be
3581solely and exclusively within the
3586responsibility of the Employer.
359049. Petitioner contends that the rights created by way of
3600the NEAT procedure in the Collective Bargaining Agreement or
3609those which might be implied in the term "just cause" as used
3621therein, may only be enforced by the use of the grievance
3632proceedings contained in the agreement and are not enforceable
3641in a proceeding before the Division of Administrative Hearings.
3650Petitioner cites Kantor v. School Boa rd of Monroe County , 648
3661So. 2d 1266 (Fla. 3rd DCA 1995), and Sickon v. School Board of
3674Alachua County , 719 So. 2d 360 (Fla. 1st DCA 1998) for this
3686proposition.
368750. In Kantor , 648 So. 2d at 1267, the Court concluded
3698that "[t]o the extent that appellant c ontends there was a
3709violation of a provision of the collective bargaining agreement,
3718appellant was obliged to resort to the grievance procedures
3727specified therein." The Court in Kantor did not discuss the
3737terms of Collective Bargaining Agreement at issue in that case.
374751. In Sickon , 719 So. 2d at 363 - 365, the Court discussed
3760in great detail the terms of the Collective Bargaining Agreement
3770and upheld the school board's denial of a teacher's petition for
3781an administrative hearing insofar as the petition al leged
3790substantial interest predicated on rights conferred by the
3798Collective Bargaining Agreement. The Court in Sickon , 719
3806So. 2d at 363 - 365, stated as follows in relevant part:
3818In Blanchette v. School Board of Leon
3825County , 378 So. 2d 68, 69 (Fla. 1st DCA
38341979), we enforced a provision in a
3841collective bargaining agreement requiring
3845arbitration of disputes "arising out of the
3852collective bargaining agreement." When
3856parties through their bargaining
3860representatives have contracted to arbitrate
3865grievabl e disputes arising out of the
3872collective bargaining agreement, grievable
3876disputes must be resolved in that matter, if
3884possible, rather than through APA procedures
3890whose object is a final order expressing the
3898decision of the employer - agency and
3905determining a party's substantial interest.
3910(citation omitted.)
3912Redress for violations of rights arising
3918under the collective bargaining agreement
3923must be pursued in the manner contemplated
3930by the collective bargaining agreement.
3935(citation omitted) The collective
3939bargaining agreement in Blanchette made
3944arbitration mandatory, while the collective
3949bargaining agreement here does not in terms
3956require resort to the grievance process. . .
3964Nevertheless, when a collective bargaining
3969agreement spells out detailed grievance and
3975arbitration procedures, it implies that the
3981parties intended that the procedures be used
3988to enforce rights the agreement confers. In
3995the absence of any contrary language in the
4003collective bargaining agreement or
4007countervailing public policy, we hold t hat
4014the parties must pursue the procedures
4020established by the collective bargaining
4025agreement rather than turn to the
4031Administrative Procedure Act, when only
4036rights created by the collective bargaining
4042agreement are at issue. (citations
4047omitted.)
404852. In the instant case, Section 4.10 of the Collective
4058Bargaining Agreement spells out the details of grievance and
4067arbitration procedures. Under Step 3 of the grievance
4075procedure, an employee with a grievable dispute may request a
4085review by Petitioner, which m ay in turn either affirm the
4096Superintendent's recommendation or set a date for a hearing. If
4106Petitioner elects to conduct a hearing, at its conclusion,
4115Petitioner may either affirm the Superintendent's recommendation
4122or make other appropriate disposition of the grievance. Under
4131Step 4 of the grievance procedure, an employee with a grievable
4142dispute who is not satisfied with Petitioner's disposition of
4151the grievance may notify Petitioner of his or her intention to
4162submit the grievance to binding arbitratio n. The Collective
4171Bargaining Agreement does not specifically provide for an
4179administrative hearing under any circumstances.
418453. Even so, Respondent's complaint respecting her
4191termination is not a grievable dispute under the Collective
4200Bargaining Agreeme nt. Section 4.10 of the Collective Bargaining
4209Agreement (quoted above in the Findings of Fact) specifically
4218prohibits utilization of the grievance procedure where there is
4227another forum having the force of law to hear the complaint
4238respecting termination.
424054. Petitioner's Acceptance of Request for Hearing dated
4248January 23, 2002, clearly states that the request was granted
4258pursuant to Section 120.569, Florida Statutes. By referring
4266this case to the Division of Administrative Hearings to resolve
4276de novo a ll issues related to Respondent's termination,
4285Petitioner has voluntarily provided Respondent with another
4292forum having the force of law other than following the grievance
4303procedures including binding arbitration. Petitioner cannot
4309foreclose Respondent's right to raise her rights arising under
4318the Collective Bargaining Agreement by electing to proceed in
4327this manner.
432955. Accordingly, the first question to be decided is
4338whether Petitioner's failure to follow the NEAT procedure
4346outlined in Section 5.03 of the Collective Bargaining Agreement
4355prevents Petitioner from establishing "just cause" for
4362terminating Respondent's employment. The answer is affirmative
4369because Petitioner had no discretion under the Collective
4377Bargaining Agreement to do otherwise.
438256. In reaching this decision, one must consider the
4391following: (a) Respondent configured her workstation so that,
4399intentionally or inadvertently, her supervisor could not see
4407whether she was performing work - related tasks or personal
4417business on her computer ; (b) Respondent falsely denied that she
4427used the internet for personal reasons; (c) Respondent objected
4436to locating her workstation near the front of the office because
4447she claimed to be too busy with her primary duties to perform
4459alternative duties; and (d) Respondent used the computer
4467extensively for personal reasons when she should have been
4476working on her primary duties or advising her employer that she
4487was available to perform other tasks. None of these factors
4497provide Petitioner with an excuse for n ot following the NEAT
4508procedure. If Petitioner had confronted Respondent with the
4516results of Mr. Mendola's investigation after he checked her
4525computer the first time and if he had implemented the NEAT
4536procedure, Respondent may have taken advantage of the
4544opportunity to redeem herself as contemplated under the
4552Collective Bargaining Agreement.
455557. On the other hand, one also must consider the
4565following: (a) Respondent never advised Respondent or other
4573employees about the written policy concerning internet usage;
4581(b) Respondent and other employees were under the impression
4590that they could use the internet for personal reasons during
4600breaks and lunch; (c) Respondent's primary duties never suffered
4609as a result of her internet usage; (d) Respondent is accused of
4621excessive internet usage not abuse of that privilege by
4630accessing inappropriate web sites; and (d) Respondent is a
4639long - term employee of Petitioner with outstanding evaluations.
4648All of these factors demonstrate the importance of complying
4657with the req uirement of the Collective Bargaining Agreement to
4667apply the NEAT procedure. At the least, these factors should
4677have mitigated any discipline.
468158. Accordingly, Petitioner has failed to establish "just
4689cause" to terminate Respondent's employment. Petiti oner should
4697be reinstated with back pay and benefits subject to an
4707appropriate professional development plan to ensure Respondent's
4714future compliance with Petitioner's internet usage policy.
4721RECOMMENDATION
4722Based on the forgoing Findings of Fact and Concl usions of
4733Law, it is
4736RECOMMENDED:
4737That Petitioner enter a final order reinstating
4744Respondent's employment with back pay and benefits.
4751DONE AND ENTERED this 3rd day of June, 2002, in
4761Tallahassee, Leon County, Florida.
4765___________________________________
4766SUZANNE F. HOOD
4769Administrative Law Judge
4772Division of Administrative Hearings
4776The DeSoto Building
47791230 Apalachee Parkway
4782Tallahassee, Florida 32399 - 3060
4787(850) 488 - 9675 SUNCOM 278 - 9675
4795Fax Filing (850) 921 - 6847
4801www.doah.state.fl.us
4802Filed with the Clerk o f the
4809Division of Administrative Hearings
4813this 3rd day of June, 2002.
4819COPIES FURNISHED :
4822William C. Haldin, Jr., Esquire
4827William C. Haldin, Jr., P.A.
4832808 Southeast Fort King Street
4837Ocala, Florida 34471
4840Mark Herdman, Esquire
4843Herdman & Sakellarides, P.A.
48472595 Tampa Road, Suite J
4852Palm Harbor, Florida 34684
4856Beverly Morris, Esquire
4859Marion County School Board
4863808 Southeast Fort King Street
4868Ocala, Florida 34471
4871James Warford, Superintendent
4874Marion County School Board
4878Post Office 670
4881Ocala, Florida 3447 8 - 0670
4887NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4893All parties have the right to submit written exceptions within
490315 days from the date of this Recommended Order. Any exceptions
4914to this Recommended Order should be filed with the agency that
4925will issue the fin al order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/03/2002
- Proceedings: Recommended Order issued (hearing held April 5, 2002) CASE CLOSED.
- PDF:
- Date: 06/03/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 04/10/2002
- Proceedings: Letter to W. Haldin from T. Stevenson enclosing Petitioner`s exhibits P-11 and P-12.
- Date: 04/05/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 02/21/2002
- Proceedings: Notice of Serving Interrogatories to Petitioner (filed by Respondent via facsimile).
- PDF:
- Date: 02/21/2002
- Proceedings: Respondent`s First Request for Production of Documents (filed via facsimile).
- PDF:
- Date: 02/18/2002
- Proceedings: Amended Notice of Taking Deposition, P. Lemieux (filed via facsimile).
- PDF:
- Date: 02/15/2002
- Proceedings: Notice of Taking Deposition (6), T. Burke, C. Mendola, F. Bryant, M. Raftis, J. Liles, J, Young (filed via facsimile).
- PDF:
- Date: 02/12/2002
- Proceedings: Notice of Hearing issued (hearing set for April 5, 2002; 10:00 a.m.; Ocala, FL).
Case Information
- Judge:
- SUZANNE F. HOOD
- Date Filed:
- 01/24/2002
- Date Assignment:
- 01/28/2002
- Last Docket Entry:
- 07/02/2002
- Location:
- Ocala, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
William C Haldin, Jr., Esquire
Address of Record -
Mark S. Herdman, Esquire
Address of Record -
Beverly Morris, Esquire
Address of Record -
Mark Herdman, Esquire
Address of Record