02-000336 Marion County School Board vs. Pam Lemieux
 Status: Closed
Recommended Order on Monday, June 3, 2002.


View Dockets  
Summary: Petitioner did not establish just cause for terminating Respondent`s employment.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/02/2002
Proceedings: Final Order filed.
PDF:
Date: 06/27/2002
Proceedings: Agency Final Order
PDF:
Date: 06/03/2002
Proceedings: Recommended Order
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: 05/20/2002
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 05/20/2002
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 04/30/2002
Proceedings: Transcripts (Volume 1 and 2) filed.
PDF:
Date: 04/10/2002
Proceedings: Letter to W. Haldin from T. Stevenson enclosing Petitioner`s exhibits P-11 and P-12.
PDF:
Date: 04/05/2002
Proceedings: (Joint) Pre-Hearing Stipulation filed with Judge in Hearing.
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, 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: Order of Pre-hearing Instructions issued.
PDF:
Date: 02/12/2002
Proceedings: Notice of Hearing issued (hearing set for April 5, 2002; 10:00 a.m.; Ocala, FL).
PDF:
Date: 02/06/2002
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 02/04/2002
Proceedings: Letter to Judge Hood from U. Farro regarding initial order (filed via facsimile).
PDF:
Date: 01/28/2002
Proceedings: Initial Order issued.
PDF:
Date: 01/24/2002
Proceedings: Acceptance of Request for Hearing (filed via facsimile).
PDF:
Date: 01/24/2002
Proceedings: Order of Suspension Without Pay (filed via facsimile).
PDF:
Date: 01/24/2002
Proceedings: Request for Hearing (filed via facsimile).
PDF:
Date: 01/24/2002
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (2):