04-003213 Lee County School Board vs. Desi Idlette Status: Closed Recommended Order on Tuesday, February 1, 2005.

Summary: 47 absences during the school`s workday are not excessive when the school board fails to show absences were unauthorized or that they adversely affected the employee`s ability to perform her job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3213

)

DESI IDLETTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judg e (ALJ) Daniel Manry conducted the

administrative hearing of this case on November 30 and

December 1, 2004, in Fort Myers, Florida, on behalf of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner has just

cause to terminate Respondent's employment as an educational

support employee.

PRELIMINARY STATEMENT

On September 9, 2004, Petitioner suspended Respondent

without pay and notified Respondent that Petitioner intended to

terminate Respondent's employment. Respondent timely requested

an administrative hearing. Petitioner referred the matter to

DOAH to conduct the administrative hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted 19 exhibits for admission into evidence.

Respondent presented the testimony of four witnesses, including

Respondent, and submitted six exhibits for admission into

evidence. The parties submitted one joint exh ibit.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the two - volume Transcript of

the hearing filed with DOAH on December 16, 2004. Pursuant to

two joint requests for extensions of time, Petitioner and

Respo ndent timely filed their respective proposed recommended

orders (PROs) on January 14, 2005.

FINDINGS OF FACT

1. Petitioner employed Respondent as a food service worker

at Lehigh Acres Middle School in Lee County, Florida (the

school), from October 22, 19 98, until August 2, 2004, when

Petitioner suspended Respondent with pay and benefits. A food

service worker is an educational support employee defined in

Subsection 1012.40(1)(a), Florida Statutes (2004).

2. Petitioner proposes to terminate Respondent's

employment on the basis of facts alleged in the Petition for

Termination dated August 11, 2004 (the petition). In relevant

part, the petition alleges that during the 2003 - 2004 school year

Respondent was guilty of excessive absences that affected

Responde nt's ability to carry out the essential functions of her

position within the meaning of Section 9.015 of the collective

bargaining agreement between Petitioner and the Support

Personnel Association of Lee County (SPALC agreement).

3. During the 2003 - 2004 school year, Respondent's work day

began at 8:30 a.m. and ended at 3:00 p.m. Each day included two

paid 15 - minute breaks and one unpaid 30 - minute lunch break.

4. Respondent's immediate supervisor adopted a policy

identified in the record as a "ready - to - work" policy. The

policy required food service workers, including Respondent, to

put on their hair nets and aprons and wash their hands before

beginning work. After a worker was ready to work, the worker

then entered in a daily log sheet the time that th e worker began

work each day. The policy also required each worker to record

in the daily log the time the worker left work and any period

that the worker left and returned to work in the same day.

5. The supervisor incorporated the "ready - to - work" po licy

in a revised employee handbook. The revised handbook was

distributed to food service workers on September 26, 2003. On

December 10, 2003, Respondent signed a form acknowledging that

she had read the revised handbook.

6. On 47 days from August 14, 2003, through May 20, 2004,

Respondent was late to work, left work early, left for part of

the same day, or was absent the entire day. Respondent was late

to work on 20 days, left work early on 13 days, was absent 13

days, and left for part of one day for two hours and ten

minutes. Petitioner deems all 47 instances to be "absences"

within the meaning of Section 9.015 of the SPALC agreement.

7. Assuming arguendo that all 47 instances are absences,

the preponderance of evidence does not show that the abse nces

were unauthorized. The supervisor testified at the hearing.

The supervisor did not have authority to approve or disapprove

absences. Rather, the head of the department or the school

principal authorized requests for absences.

8. Neither the head of the department nor the principal

testified at the hearing. The supervisor did not know whether

Respondent's absences were unauthorized. The supervisor merely

reported the 47 absences to the "front office" and later

determined they were unauthorized a nd excessive. Petitioner did

not submit personnel records that may have documented which

absences, if any, were unauthorized.

9. Counsel for Petitioner argued during the hearing that

even authorized absences can adversely affect Respondent's

ability to c arry out the essential functions of her position

within the meaning of Section 9.015. However, counsel did not

cite any legal authority in his PRO to support the argument.

10. Assuming arguendo that all 47 absences were

unauthorized, Subsection 9.016(a) of the SPALC agreement imposed

an affirmative duty on Petitioner to inform Respondent,

immediately upon her arrival to work following each absence,

that Petitioner considered the absence to be unauthorized. The

purpose of the requirement is to afford an e mployee such as

Respondent with notice and an opportunity to show extenuating

circumstances. If an employee demonstrates extenuating

circumstances, the agreement requires Petitioner to change the

absence to an authorized absence.

11. It is undisputed tha t Respondent had several physical

conditions, including skin cancer and a miscarriage, that

affected her attendance during the 2003 - 2004 school year. The

preponderance of evidence shows that Respondent was absent from

work due to medical conditions.

12. During the hearing, Petitioner stipulated that it was

withdrawing several dates as a basis for its proposed

termination of employment. The withdrawn dates include all 13

days on which Respondent was absent for an entire day; the day

that Respondent left a nd returned to work for part of the day;

and ten days that Respondent left work early on August 25 and

September 10, 2003, and between October 20, 2003, and

March 26, 2004.

13. The stipulation reduced the contested absences on

which Petitioner based th e proposed termination to 20 days when

Respondent was late to work and three days when Respondent left

work early. As previously found, Petitioner failed to submit

testimony or documentation that the contested absences were

unauthorized or that Petitioner informed Respondent upon her

arrival to work that Petitioner had determined the immediately

preceding absence to be unauthorized.

14. Assuming arguendo that the contested absences were

unauthorized and that Petitioner provided timely notice to

Respondent , the contested absences present other evidential

concerns for the trier of fact. On 12 of the 20 days that

Respondent was late to work, Respondent was no more than five

minutes late. Being late five minutes or less did not affect

Respondent's ability to carry out the essential functions of her

position within the meaning of Section 9.015. Another food

service worker testified for Petitioner that being late five

minutes or less did not affect any employee's ability to do his

or her job.

15. For the remaining eight late arrivals, Respondent was

15 minutes late on two days, 30 minutes late on two days, and

was late the remaining four days between seven and 12 minutes.

The preponderance of evidence did not show that Respondent

failed to telephone her supervisor when Respondent was going to

be late 15 or more minutes. During most of the remaining four

days, Respondent was at the school getting ready for work or

otherwise within view of her supervisor.

16. The co - worker called as a witness by Petition er,

testified that Respondent's tardiness in excess of five minutes

did not adversely affect the witness' job responsibilities, but

did adversely affect the supervisor or other workers. However,

the witness erroneously thought that Respondent's work day i n

the 2003 - 2004 school year began at 8:00 a.m. It is undisputed

that Respondent's shift began at 8:30 a.m. The witness never

really knew Respondent's actual start time.

17. When Respondent was late to work, Respondent made up

the time by working into h er lunch or break periods. This was a

custom that similarly situated workers practiced regularly.

18. The assistant principal for the school did not

testify. However, documents in the record indicate that the

assistant principal met with Respondent o n October 20, 2003. At

that time, Respondent had been late to work approximately 15

times, absent approximately two times, and had left work early

approximately two times. The documents indicate the assistant

principal "talked with [Respondent] . . . abo ut being on time to

work." The supervisor who testified at the hearing was not

present at the meeting.

19. Following the meeting with the assistant principal,

Respondent's attendance improved. The supervisor did not

formally discuss Respondent's attend ance with her again until

the supervisor completed a performance evaluation for Respondent

in March 2004.

20. The performance evaluation, in pertinent part,

authorized the supervisor to score prescribed categories of

Respondent's job performance as "Ef fective level of performance

observed," "Inconsistently practiced," or "Unacceptable level of

performance observed." The supervisor did not score any of

Respondent's targeted areas as "Unacceptable level of

performance observed." She scored five areas as "Inconsistently

practiced," including categories labeled "Is punctual in

attendance," "Follows written and oral work schedule," and

"Exhibits dependability."

21. On April 22, 2004, the school principal signed a form

recommending Respondent for reemploym ent for the 2004 - 2005

school year. On April 29, 2004, Respondent counter - signed the

form recommending reemployment. On the date of the proposed

reemployment, Respondent had been absent from work 43 days,

including 19 of the 20 contested late arrivals and one of the

three contested days when Respondent left work early.

22. On May 20, 2004, Respondent left work three hours

early. On May 21, 2004, the supervisor issued a written

reprimand to Respondent for being late to work, leaving work

early, or bein g absent from work approximately 47 times between

August 14, 2003, and May 20, 2004.

23. The written reprimand did not provide a clear point of

entry for Respondent to contest the factual basis for the

reprimand in an administrative hearing. The reprima nd merely

informed Respondent that Respondent was entitled to prepare a

response to the reprimand.

24. Respondent and her union representative did not

challenge the factual basis of the written reprimand in a

grievance procedure authorized in Article 5 o f the SPALC

agreement. However, Section 5.102 prohibits the grievance

procedure from being construed to deny any rights that are

otherwise guaranteed to Respondent by law.

25. On May 24, 2004, the first work day following

Respondent's receipt of the written reprimand, Respondent began

work five minutes late at 8:35 a.m. Neither the supervisor nor

any other representative for Petitioner spoke with Respondent to

inform her that Petitioner had determined the late arrival to be

an unauthorized absence.

26. On May 27, 2004, the supervisor recommended that

Petitioner terminate Respondent's employment. This proceeding

ensued.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties and the subject

matter. § 120.57(1), Fla. Stat. (2003). The parties received

adequate notice of the administrative hearing.

28. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that just cause exists to

terminate Respondent's employment for the reasons stated in the

petit ion. McNeill v. Pinellas County School Board , 678 So. 2d

476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County , 569

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

29. During the hearing, Petitioner submitted evidence

purporting to show that Respondent had exces sive absences in

school years prior to the 2003 - 2004 school year. The trier of

fact has not considered that evidence as a basis for a finding of

fact. The factual allegations in the petition are confined to

Respondent's conduct in the 2003 - 2004 school ye ar. Evidence of

excessive absences in previous years is not relevant to the

factual allegations in the petition. See Florida State University

v. Tucker , 440 So. 2d 37 (Fla. 1st DCA 1983).

30. The trier of fact has not considered evidence of

absence s in previous years as similar fact evidence to prove

"notice." Subsection 120.57(1)(d), Florida Statutes (2004),

requires Petitioner to furnish Respondent with a timely written

statement describing with particularity the evidence Petitioner

intended to i ntroduce as similar fact evidence, and Petitioner did

not satisfy the statutory requirement.

31. Petitioner relies on the factual allegations on which

the written reprimand was based, as modified by the stipulation

during the hearing, to justify the pr oposed termination of

employment. Respondent did not waive her statutory right to

contest the factual allegations by failing to request an

administrative hearing after receipt of the written reprimand.

The written reprimand contains no clear point of ent ry. See

McIntyre v. Seminole County School Board , 779 So. 2d 639 (Fla. 5th

DCA 2001) (holding, inter alia that the agency must show it

provided employee with a clear point of entry in order to show

that employee waived statutory right to a hearing).

32. The failure of Respondent to challenge the factual basis

of the written reprimand in a grievance procedure does not

preclude Respondent from requesting an administrative hearing for

that purpose. Section 5.102 of the SPALC agreement expressly

prohibits t he agreement from being construed to deny Respondent

any rights otherwise guaranteed by law. See Sublett v. District

School Board of Sumter County , 617 So. 2d 374 (Fla. 5th DCA 1993)

(holding employee did not waive right to administrative hearing

where co llective bargaining agreement expressly provided that no

rights under Florida law were waived by the agreement).

33. The petition alleges that Respondent engaged in a

pattern of excessive absences that affected Respondent's ability

to carry out the essen tial functions of her position. Section

9.015 of the SPALC agreement defines excessive absence as:

a. three (3) consecutive days of absence

without medical verification in a case where

abuse is suspected and/or

b. three (3) unauthorized absences in a

t welve (12) month period and/or

c. a continued pattern of absence that

affects an employee's ability to carry out

the essential functions of his/her position.

34. Petitioner cannot rely on the first and second

definitions of excessive absence to termin ate Respondent's

employment. The petition does not include those grounds, and

Respondent is entitled to notice and an opportunity to be heard on

the allegations in the petition. Pilla v. School Board of Dade

County , 655 So. 2d 1312 (Fla. 3d DCA 1995); Tu cker , 440 So. 2d

at 37.

35. Petitioner failed to satisfy its burden of proving the

factual allegations in the petition. The preponderance of

evidence does not show that any of the absences, including the

contested absences in the stipulation during th e hearing, either

were unauthorized or adversely affected Respondent's ability to

carry out the essential functions of her position.

36. If it were determined that Petitioner may rely on the

first two definitions of excessive absence as grounds for

ter mination, Petitioner did not satisfy its burden of proof.

Petitioner did not show that Respondent used her medical

conditions to abuse the leave policies in the SPALC agreement.

Nor did Petitioner show that any of the absences, including three

absences i n a 12 - month period, were unauthorized.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order dismissing

the petition, reinstating the employment of Respondent, and

awarding Respondent full back pay and benefits.

DONE AND ORDERED this 1st day of February, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 1st day of February, 2005.

COPIES FURNISHED :

Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Dr. James W. Browder, III, Superintendent

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 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 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 this case.