03-000187 Miami-Dade County School Board vs. Carleen Braddy Status: Closed Recommended Order on Wednesday, December 31, 2003.

Summary: Dismissal of cafeteria worker who kept missing work without calling in or medical excuse, despite principal`s repeated demand that she call in and document reasons for absences.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0187

)

CARLEEN BRADDY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on March 13, 2003.

APPEARANCES

For Petitioner: Denise Wallace

Legal Department

Miam i - Dade County School Board

1452 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: no appearance

STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of willful

absence from duty, in violation of Section 1012.67, Florida

Statutes; willful neglect of duty, in violation of Sections

447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; gross

insubordination, in violation of Sections 447.209,

1012.22(1)(f), and 1012.40, Florida Statutes; and incompetence,

in violation of Sections 447.209, 1012.22(1)(f), and 1012.40,

Florida Statutes.

PRELIMINARY STATEMENT

By Notice of Specific Charges filed February 20, 2003,

Petitioner alleged that Respondent was employed as a part - time

cafet eria worker at Ludlam Elementary School for the 2001 - 02

school year. Petitioner alleged that, by January 24, 2002,

Respondent had been absent for 16 days. After receiving an

order from the principal to communicate in advance and document

future absences, Respondent allegedly failed to report to work

or call in several more times. After a conference - for - the -

record with the principal, who warned that continued failure to

comply with her order would be gross insubordination, Respondent

allegedly failed to r eport to work or call in several more

times. Petitioner alleged that Respondent never eliminated her

pattern of excessive absenteeism and failing to advise the

school on days that she would not be coming to work.

At the hearing, Petitioner called two wit nesses and offered

into evidence six exhibits, which were all admitted. Petitioner

did not order a transcript.

FINDINGS OF FACT

1. During the 2001 - 02 school year, Petitioner employed

Respondent as a part - time cafeteria worker at Ludlam Elementary

School. Except for the manager, all food workers at the school

are part - time employees. The absence of any of these workers,

especially without notice on the morning of the nonappearance,

places a considerable burden on the other cafeteria workers and

jeopardiz es the provision of what may be the first meal of the

day for many students.

2. By January 24, 2002, Respondent had been absent 16

days, including the four consecutive days preceding Christmas

vacation, four of five days in mid - January, and January 22 - 24,

2002. Responding to this problem, the school principal sent

Respondent a memorandum dated January 24 and ordering her to

notify the principal of when Respondent intended to return to

work and use leave procedures in the future. On the same date,

the pri ncipal sent another memorandum to Respondent ordering her

to communicate directly to the principal when Respondent

intended to be absent and document future absences with medical

excuses. Respondent signed this memorandum, indicating receipt.

3. On Sunda y, January 27, 2002, Respondent telephoned the

principal and told her that Respondent would be returning to

work the following day. The next day, when Respondent appeared

at work, the principal talked to her about Respondent's

professional responsibilitie s and offered to refer her to the

Employee Assistance Program for help with a problem with alcohol

that Respondent said that she had. Respondent declined the

offer and said she would follow the principal's orders.

4. The next day, Respondent arrived to w ork late. The

following day, Respondent did not report to work or call in to

notify the school of her absence. The two succeeding days,

Respondent did not report to work, but she called the principal

to say that she was in the hospital. However, on the last day

of the week, Respondent did not report to work and did not call

in.

5. On February 11, 2002, the principal conducted a

conference - for - the - record (CFR) with Respondent. Respondent

said that she had been a recovering alcoholic for 15 years and

had been encountering problems with alcohol since October. The

principal again offered a referral to the Employee Assistance

Program, but Respondent said that she was already in counseling.

The principal warned Respondent that further noncompliance with

her order would be gross insubordination.

6. On February 19 and 20, 2002, Respondent was again

absent and again failed to notify anyone at school of her

absence. On the next day, the principal sent another warning

memorandum to Respondent.

7. On February 2 6 and March 11, 2002, Respondent again

missed work and again failed to call anyone at the school.

Respondent never provided medical documentation for these

absences. Also, on March 5 and 8, 2002, Respondent was tardy

without calling in to say that she wo uld be late.

8. On March 11, Respondent also failed to attend an

appointment that the principal had scheduled for her with the

Employee Assistance Program. Respondent told the principal that

she would reschedule the appointment, but later failed to app ear

at this appointment.

9. On September 20, 2002, the district office conducted a

CFR. Out of 18 workdays in the new 2002 - 03 school year,

Respondent had already missed four. For the prior school year,

Respondent had been absent 47 times and late 11 tim es. Of the

47 absences, Respondent never called the principal 23 times and

never even called the school 11 times. Respondent at first

claimed that she had only been absence once that school year,

but later admitted to four absences. She then explained t hat

two of the absences were due to a job interview and an accident

at the train station.

10. On January 16, 2003, Petitioner advised Respondent

that it had suspended her and initiated dismissal proceedings

for the reasons set forth above.

11. Petitioner has proved that Respondent is guilty of

willful absence from duty without leave by repeated absences

without leave and without notification on the day of the

absence; willful neglect of duty by repeated absences, repeated

failures to advise the school of absences, and repeated failures

to provide medical documentation for absences; gross

insubordination for the repeated disregard of the principal's

order to call in before absences and document absences; and

incompetence for the failure to perform her job d uties

adequately.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

13. Section 1012.67 provides: "Any di strict school board

employee who is willfully absent from duty without leave shall

forfeit compensation for the time of such absence, and his or

her employment shall be subject to termination by the district

school board."

14. Section 1012.33(1)(a) author izes Petitioner to

terminate the contract of any employee for "just cause," which

includes incompetency, gross insubordination, and willful

neglect of duty."

15. Petitioner has the burden of proving the material

facts by a preponderance of the evidence. Dilleo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

16. Petitioner has proved that Respondent is guilty of

willful absence from duty without leave, willful neglect of

duty, gross insubordination, and incompetency.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing

Respondent from employment.

DONE AND ENTERED this 14th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 14th day of March, 2003.

COPIES FURNISHED:

Merrett R. Stierheim

Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 9 12

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Denise Wallace

Legal Department

The School Board of Miami - Dade County

1452 Northea st Second Avenue, Suite 400

Miami, Florida 33132

Carleen Braddy

1884 Northwest 53rd Street

Miami, Florida 33142

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommen ded order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.