04-002637 Miami-Dade County School Board vs. Frederick D. Tuff Status: Closed Recommended Order on Thursday, May 5, 2005.

Summary: Respondent`s violation of work attendance and medical leave policies and procedures warrants termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2637

)

FREDERICK D. TUFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to no tice, a final hearing was held in this case

on January 21, 2005, via video teleconference at locations in

Miami and Tallahassee, Florida, before Florence Snyder Rivas, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second 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 ISSUE

Whether Respondent's employment should be terminated.

PRELIMINARY STATEMENT

On J uly 14, 2004, Petitioner, the School Board of Miami -

Dade County, Florida (Petitioner or School Board), took action

to initiate dismissal proceeding s against Respondent,

Frederick D. Tuff (Respondent or Tuff). Respondent timely

asserted his statutory and c ontractual rights to an

administrative hearing to contest the termination.

On August 13, 2004, Petitioner served its Notice of

Specific Charges (Notice) alleging grounds for termination, all

relating to unauthorized absence from work.

The transcript of th e final hearing was filed with the

Division of Administrative Hearings on March 10, 2005. Timely

proposed recommended orders were filed and have been carefully

considered.

References to sections are to the Florida Statutes (2004).

FINDINGS OF FACT

1. At all times pertinent to this case, Tuff was employed

by the School Board as a custodian and assigned to one of the

School Board's transportation centers.

2 . At all relevant times, Tuff wa s an "educational support

employee , " who has successfully completed h is probationary

period within the meaning of Section 1012.40, Florida Statutes;

a member of a collective bargaining unit represented by the

American Federation of State, County, and Municipal Employees,

Local 1184 (AFSCME); and wa s covered by a collective bargaining

agreement between the School Board and AFSCME (AFSCME Contract).

3. For at least two years prior to his termination, Tuff's

attendance record and job performance were poor. Tuff

repeatedly violated School Board rules regarding unauthorized

abs ences and or procedures relating to medical leave. Under the

AFSCME contract, the School Board could have taken disciplinary

action, including termination, on numerous occasions during this

period , but did not.

4. By way of defense, Tuff contended that a t all relevant

times, the School Board knew or should have known that Tuff's

absences were related to a medical condition which has since

been mitigated through proper treatment. Tuff's evidence

concerning what, if any, medical condition he had was

unpers uasive. It is therefore unnecessary to reach the question

of whether Tuff's medical condition, if proved, would have

afforded a legal defense to his absences from work under the

facts and circumstances of this case.

5. Tuff's absences created a morale pr oblem among co -

workers, who were chronically imposed upon to perform tasks

which properly belonged to Tuff. Tuff's co - workers complained

to mutual supervisors. Supervisors, in turn, spoke frequently

to one another and to Tuff about his attendance record, all of

which was disruptive to the workplace.

6. Although it is a violation of School Board policy to

discuss a personnel issue with a non - employee, on one occasion,

a supervisor in Tuff's chain of command , who had known "Mr. Tuff

and his entire family for over 20 years , " discussed Tuff's

absenteeism with Tuff's father.

7. By the spring of 2004 Petitioner decided it would no

longer tolerate Tuff's inability to comply with its rules

prohibiting unauthorized absence.

8. At least one supervisor concluded there was "no other

alternative but to follow the procedures and recommend

termination." Petitioner thereafter commenced to document

Respondent's unauthorized absences from the workplace, and to

provide Respondent with applicable statutory and contractua l

notice regarding his failure to comply with Petitioner's

relevant policies.

9. More specifically, on April 8, 2003, and May 5, 2003,

Tuff received verbal warnings for unauthorized absences.

10. On June 18, 2003, Tuff received a written warning

regardin g continued unauthorized absences.

11. The School Board documented and proved 11 unauthorized

absences in the first and second quarters of 2003. Under the

AFSCME contract, t en unauthorized absences in a 12 - month period

constitute grounds, standing alone, for termination.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter. See §§ 120.569 and

120.57(1), Fla . Stat.

13. To prevail, Petitioner is required to prove the

material allegations set forth in its Notice by a preponderance

of the evidence. Dileo v. School Board of Dade County , 569 So.

2d 883 (Fla. 3d DCA 1990).

14. Petitioner has fulfilled its burden by proving that

Tuff had 11 unauthorized absences in less than a year’s time.

Ten or more unauth orized absences in less than a year violates

School Board rules concerning excessive absenteeism and

constitute grounds for dismissal, pursuant to the AFCSME labor

contract. See , § 1012.40, Fl a . Stat.

15. The School Board's failure to fully exercise its

disciplinary rights against Tuff in the timeliest manner

possible does not, as he contends, preclude the School Board

from terminating him under the circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered terminating

Tuff's employment.

DONE AND ENTERED this 5 th day of May, 2005, in Tallahassee,

Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 5t h day of May , 2005.

COPIES FURNISHED :

Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Fl orida 33169

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1394

Honorable John L. Winn

Commissioner of Education

Department of Education

325 West Gaines Street

Tallahassee , Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in.