03-001334 Miami-Dade County School Board vs. Marc S. Morgan Status: Closed Recommended Order on Friday, October 24, 2003.

Summary: Excessive absenteeism and failure to adhere to leave policies justified the termination of the educational support employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1334

)

MARC S. MORGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice , a final hearing was conducted on

July 23, 2003, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Denise Wal lace, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue

Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

STATEMENT OF THE ISSUES

Whether Respondent's employment should be terminated based

on the allegations contained in the Not ice of Specific Charges.

PRELIMINARY STATEMENT

On April 9, 2003, Petitioner voted to suspend without pay

Respondent's employment as a custodian and to institute

proceedings to terminate his employment. Respondent timely

requested a formal hearing to c hallenge the proposed action, the

matter was referred to the Division of Administrative Hearings,

and this proceeding followed. On May 27, 2003, Petitioner filed

its Notice of Specific Charges, which alleged certain facts and,

based on those facts, allege d in four counts the grounds for its

actions. 1 Count I alleged that Respondent was excessively

absent, had failed to comply with School Board Rule 6Gx13 - 4A1.21

pertaining to absences and leaves, and had abandoned his

position of employment. Count II alle ged that Respondent was

guilty of willful neglect of duty. Count IV alleged that

Respondent violated School Board Rule 6Gx13 - 4A - 1.21 pertaining

to duties and responsibilities of School Board employees. Count

V alleged that Respondent's job performance wa s deficient.

At the final hearing, Petitioner presented the testimony of

Cynthia Gracia (principal of Melrose Elementary School) and

Barbara Moss (District Director of Petitioner's Office of

Professional Standards.) Petitioner offered four exhibits, eac h

of which was accepted into evidence. Respondent testified on

his own behalf, and presented the additional testimony of Leanne

Perez, his girlfriend. In addition, the parties stipulated as

to the pertinent School Board rules and the pertinent provisions

of the collective bargaining agreement (CBA) between Petitioner

and American Federation of State, County, and Municipal

Employees Local 1184 (AFSCME), Respondent's union.

A Transcript of the proceedings was filed on October 7,

2003. Petitioner filed a Proposed Recommended Order, which has

been considered by the undersigned in the preparation of this

Recommended Order. Respondent did not file a proposed

recommended order.

All statutory citations are to Florida Statutes (2002),

unless otherwise indicated .

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner

has been a duly - constituted school board charged with the duty

to operate, control, and supervise all free public schools

within the school district of Miami - Dade County, Florida,

pursuant to Article IX, Florida Constitution, and Section

1001.32.

2. Petitioner has continuously employed Respondent since

1992 as a custodian at Melrose Elementary School, one of the

public schools in Miami - Dade County.

3. At all times relevant to this proceeding, Cynthia

Gracia was the principal of Melrose Elementary School.

4. Respondent is a non - probationary "educational support

employee" within the meaning of Section 1012.40, which provides,

in pertinent part, as follows:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system . . . who by virtue of his or her

position of employment is not required to be

certified by the Department of Education or

district school board pursu ant to

s. 1012.39. . . .

(b) "Employee" means any person employed

as an educational support employee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective b argaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unles s 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 . . .

5. At the times material to this proceeding, Re spondent

was a member of the AFSCME collective bargaining unit. AFSCME

and Petitioner have entered into a CBA, which provides in

Article XI for discipline of covered employees. Article XI,

Section 4 provides that covered employees who have been employed

by Petitioner for more than five years (such as Respondent) may

only be discharged for "just cause."

6. Article XI, Section 4 of the CBA pertains to types of

separation from employment. Article XI, Section 4(B) pertains

to excessive absenteeism and aba ndonment of position and

provides as follows:

(B) An unauthorized absence for three

consecutive workdays shall be evidence of

abandonment of position. Unauthorized

absences totaling 10 or more workdays during

the previous 12 - month period shall be

evide nce of excessive absenteeism. Either

of the foregoing shall be grounds for

termination. . . .

7. School Board Rule 6Gx13 - 4E - 1.01 provides as follows:

Except for sudden illness or emergency

situations, any employee who is absent

without prior approva l shall be deemed to

have been willfully absent without leave.

8. Pursuant to Section 1012.67, a school board is

authorized to terminate the employment of an employee who is

willfully absent from employment without authorized leave, as

follows:

A ny district 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

school board.

9. Petitioner's leave policies do n ot permit a leave of

absence for an incarcerated employee, unless the employee can

demonstrate that he or she was wrongfully incarcerated. At the

times material to this proceeding, Respondent was not wrongfully

incarcerated, and he was not eligible for a leave of absence

under Petitioner’s leave polices.

10. School Board Rule 6Gx13 - 4A - 1.21 states in pertinent

part that:

All persons employed by The School Board

of Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

11. On September 25, 2002, Respondent was charged with

assault and battery (domes tic violence) involving his then

girlfriend. Those charges were pending at the time of the final

hearing.

12. On or about November 14, 2002, Respondent appeared at

a court hearing. Because he had missed an earlier court date,

Respondent was incarcerat ed in the Miami - Dade County jail.

Shortly after he was arrested, Respondent attempted to contact

Ms. Gracia at Melrose Elementary School. Respondent testified

he tried to call the school five or six times on the day he was

arrested, but the call from jai l was long distance and the

school would not take a collect call. That same day, Respondent

called his new girlfriend (Leanne Perez), told her that he was

in jail, and asked her to tell Ms. Gracia that he was in jail.

On November 14, 2002, Ms. Perez told Ms. Gracia by telephone

that Respondent had been detained. When questioned, Ms. Perez

explained that Respondent was in jail, but she did not provide

any additional information.

13. Respondent returned to his job site on December 16,

2002. Between Nov ember 14 and December 16, Respondent was

absent from work without authorized leave. Neither Respondent

nor anyone on Respondent's behalf contacted or attempted to

contact Ms. Gracia between Ms. Perez's telephone call on

November 14 and Respondent's reappe arance at the job site on

December 16.

14. Prior to his incarceration, Respondent had absences

from work without authorized leave. From April 11, 2002, to

December 16, 2002, Respondent had 29.5 days of unauthorized

absences from the worksite.

15. Resp ondent's unauthorized absences impeded the

provision of the custodial services that are necessary to keep a

school clean and safe. During Respondent's unauthorized

absences, the other members of the custodial staff had to

perform their duties and had to p erform extra work to cover for

Respondent's absence.

16. On December 5, 2002, Ms. Gracia wrote a memorandum to

Respondent styled "Employment Intention." After listing the

dates Respondent had been absent between October 10, 2002, and

December 5, Ms. Gr acia wrote as follows:

These absences have caused the effective

operation of the worksite to be impeded,

and/or efficient services to students to be

impeded. I am requesting your immediate

review and implementation of any of the

following options:

1. Notify the worksite of your intended

date of return; or

2. Effect leave procedures (request for

leave [form] attached); or

3. Implement resignation from Miami - Dade

County Public Schools. (Resignation letter

attached.)

You are directed to notify the worksite

within 3 days of the date of this memorandum

as to your employment intention. Your

absences will be considered unauthorized

until you communicate directly with this

administrator.

17. Ms. Gracia's memorandum was mailed to the address

Resp ondent had given Petitioner as his residence, and a relative

of Respondent, who was not named at the final hearing, signed

for the mailing. Respondent testified, credibly, that he did

not receive the memorandum until after he got out of jail.

Respondent did not respond to the memorandum.

18. Respondent testified, credibly, that he did not intend

to abandon his employment.

19. Respondent worked between December 16, 2002, and

April 9, 2003, the date Petitioner suspended Respondent's

employment without p ay and instituted these proceedings to

terminate his employment.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florid a

Statutes (2003).

21. Pursuant to Section 1012.40(2)(b), Petitioner has the

authority to discipline Respondent’s employment for the grounds

set forth in the CBA. Any such discipline must be for "just

cause." The School Board has the burden of proving t he

allegations in the Notice of Specific Charges by a preponderance

of the evidence. Allen v. School Board of Dade County , 571 So.

2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake

County , 569 So. 2d 883 (Fla. 3d DCA 1990). The CBA does not

i mpose a more stringent burden of proof on the School Board.

22. Respondent successfully rebutted Petitioner's evidence

that he intended to abandon his job. Respondent is not guilty

of the portion of Count I of the Notice of Specific Charges

alleging th at he abandoned his position.

23. Petitioner proved by a preponderance of the evidence

that Respondent was guilty of excessive absenteeism, which

constitutes just cause to terminate his employment pursuant to

Article XI, Section 4(B) of the CBA. Responde nt is guilty of

the portion of Count I of the Notice of Specific Charges

alleging that he was guilty of excessive absenteeism.

24. Petitioner established by a preponderance of the

evidence Respondent's absences from work without authorized

leave should be deemed to be willful absences pursuant to School

Board Rule 6Gx13 - 4E - 1.01. 2 Based on those willful absences and

on Respondent's breach of his duty to comply with Petitioner's

leave policies, it is concluded that Respondent is guilty of

willful neglect of duty as alleged in Count II of the Notice of

Specific Charges.

25. Petitioner established that Respondent was arrested

and subsequently incarcerated. That evidence, in the absence of

any evidence that Respondent was guilty of the underlying

offense, does not establish that Respondent violated School

Board Rule 6Gx13 - 4A - 1.21, pertaining to employee conduct.

Respondent is not guilty of the violation alleged in Count IV of

the Notice of Specific Charges.

26. There was insufficient evidence to establ ish that

Respondent's job performance was deficient. Respondent is not

guilty of the violation alleged in Count V of the Notice of

Specific Charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that P etitioner enter a final order that

adopts the Findings of Fact and Conclusions of Law set forth in

this Recommended Order, sustains the suspension of Respondent's

employment without pay, and terminates that employment.

DONE AND ENTERED this 24th day of Oct ober, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

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 24th day of October, 2003.

ENDNOTES

1/ The Notice of Specific Charges erroneously numbered the

counts as Count I , Count II, Count IV, and Count V. There was

no Count III.

2/ Respondent's argument that his incarceration constituted an

emergency situation within the meaning of School Board Rule

6Gx13 - 4E - 1.01, thereby excusing his compliance with Petitioner's

leave policy is without merit. Respondent's failure to

communicate with Petitioner between Ms. Perez's telephone call

on November 14 and Respondent's reappearance at the job site on

December 16 was not explained.

COPIES FURNISHED :

Manny Anon, Jr., Esquire

A FSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

Denise Wallace, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue

Suite 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent

Miami - Dade County Scho ol Board

1450 Northeast 2nd Avenue

Suite 912

Miami, Florida 33132

Honorable Jim Horne

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General C ounsel

Department of Education

1244 Turlington Building

315 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.