07-001138 Seminole County School Board vs. Douglas Porter Status: Closed DOAH Final Order on Thursday, September 27, 2007.

Summary: Respondent was terminated after being absent from duty without approved leave in violation of the Collective Bargaining Agreement. Recommend that Respondent`s employment be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1138

)

DOUGLAS PORTER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notic e, a formal hearing was held in this

case on May 7, 2007, in Sanford, Florida, before Jeff B.

Clark, a duly - designated Administrative Law J udge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ned Julian, Jr., Esquire

Seminole Cou nty School Board

400 E ast Lake Mary Boulevard

Sanford, Florida 32773 - 7127

For Respondent: Pamela Hubbell Cazares, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether Respondent, Douglas Porter, should be terminated

for his third absence without leave in violation of the

Collective Bargaining Agreement between Petitioner, Seminole

County School Board, and the n on - i nstructional p ersonnel of

Seminole County.

PRELIMINARY STATEMENT

On or about February 6, 2007, Respondent received a letter

from Bill Vogel, Superintendent of Seminole County Public

Schools, advising him that he, as Superintendent of Seminole

County Public Schools, would be recommending to the School Board

tha t it terminate Respondent's employment based on Respondent's

third occurrence of being absent from duty without approved

leave, violation of work rules , and insubordination. By letter

dated February 22, 2007, Respondent, through his attorneys,

requested a n administrative hearing.

On March 9, 2007, Petitioner forwarded a Petition For

Termination to the Division of Administrative Hearings and

served same on Respondent's attorneys. The Petition for

Termination, charges that "respondent be terminated for jus t

cause do [ sic ] to third absence without approved leave pursuant

to Article VII, Sections 5, 11, and 15 of the Official Agreement

Between Non - Instructional Personnel of the Seminole County Board

of Public I nstruction Association, Inc. [NIPSCO], and The Sc hool

Board of Seminole County Florida, Sanford, Florida [SCSB]"

("Collective Bargaining Agreement").

On March 12, 2007 , an Initial Order was sent to both

parties. Based on the parties' joint response, the case was

scheduled for final hearing on May 7 an d 8, 2007, in Sanford,

Florida.

The final hearing was conducted on May 7, 2007. Petitioner

presented four witnesses: Douglas Porter, Denis Quagliani,

David Steindl and John Reichert. Petitioner's Composite

Exhibit 1, a loose - leaf notebook containing num erous documents,

was received into evidence.

Respondent testified in his own behalf and presented the

testimony of Craig Hope. Respondent's Exhibits 44 and 50 were

received into evidence.

In addition, Respondent and Petitioner offered Joint

Exhibits 2 through 15 and 22 , which were received into evidence

and marked accordingly.

The agreement of the parties to submit their proposed

recommended orders within 30 days of the transcript being filed

was ratified. The T ranscript was filed on June 7, 2007.

Mo tions were filed and granted for an extension of time to file

proposed recommended orders to August 1, 2007. Both parties

timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearin g in this matter and the joint stipulation submitted

April 24, 2007, the following F indings of F acts are made:

1. Respondent, Douglas Porter, is , and has been , employed

by the School Board of Seminole County since July 13, 1993.

2. Paul Hagerty and Wi lliam Vogel have been

Superintendents of Public Schools for the School District of

Seminole County, Florida , for all times material to the

occurrences relevant to this case.

3. Pursuant to Section 4, Art icle IX, Fl orida

Const itution, and Sections 1001.30 , 1001.31, 1001.32, 1001.33,

1001.41, and 1001.42 , Florida Statutes (2006), the School Board

of Seminole County , Florida , is the governing board of the

School District of Seminole County , Florida .

4. The relationship of the parties is controlled by

Flori da Statutes, the Collective Bargaining Agreement, and

School Board policies.

5. Respondent is an employee of Petitioner's Grounds

Maintenance Department, 100 Division ("maintenance department").

He began his employment in that division at the entry leve l

position of Grounds Laborer I and worked his way up to Grounds

Laborer II, prior to becoming a m echanic c rew l eader. As a

mechanic crew leader, Respondent supervised three employees on

his crew and interacted with principals and assistant principals

to determine the landscaping needs of various schools.

Respondent held the position of mechanic crew leader for

approximately two years.

6. Respondent has been employed by Petitioner for more

than three years and is a "regular" employee and subject to th e

Collective Bargaining Agreement, copies of which he receives

annually.

7. Article VII, Section 15, of the Collective Bargaining

Agreement, provides, in pertinent part:

Employees shall report absences and the

reason for such absences prior to the start

o f their duty day in accordance with

practices established at each cost center.

An employee who has been determined to have

been AWOL shall be subject to the following

progressive discipline procedures:

1st Offense - Written reprimand and one day

suspensi on without pay.

2nd Offense - Five day suspension without

pay.

3rd Offense - Recommended for termination.

Each day that an employee is AWOL shall be

considered a separate offense. However, any

documentation of offenses in this section

shall be maintained in the employee's

personnel file.

8. Article VII, Section 15, has consistently been

construed to apply to an employee's absence from his or her

assigned duties for any portion of the day , as well as the

entire day.

9. An employee who is absent from his or her assigned work

duties without the permission of the employee's supervisor is

considered to be absent without leave.

10. The Collective Bargaining Agreement requires that an

employee call in before the start of the work day if he or she

is going to b e absent; historically, maintenance department

employees are given a 15 - minute grace period after the start of

the work day to call in. Although not reduced to a written

directive, this practice is well - known within the maintenance

department .

11. An empl oyee in the maintenance department who calls in

sick , is reported to the payroll clerk who checks the employee's

timesheet; if the employee has time on the books, he or she is

approved for pay for the sick time. If the employee does not

have time on the b ooks, he or she is charged with a sick day

with no pay.

12. An employee who fails to call in, or calls in late, is

considered absent without leave if he or she does not physically

report for work that day or for the portion of the day missed

due to tardine ss. If the employee reports for work, he or she

is subject to discipline, but is paid for the hours worked. If

the employee calls in during the 15 - minute grace period and is

late, he or she is not subject to discipline, but is paid only

for the time work ed.

13. Respondent had used 13 days of annual leave, 16 days

of sick and personal leave, and 27 days of unpaid leave in the

2000 school year. This prompted Respondent's supervisor to

indicate that his attendance needed improvement in Respondent's

annual e valuation.

14. As reflected in each of Respondent's a nnual

assessments during his employment, Respondent's absenteeism

created a hardship on his department and his attendance needed

improvement.

15. Normally, an employee is not required to provide proof

of illness. In instances where an employee has excessive sick

days, validation of illness is required. Concern with

Respondent's excessive sick days prompted his supervisor to

require, by letter dated October 1, 2001, medical certification

of future illn ess that required missing work.

16. By October 1, 2001, for the 2001 school year , which

began on July 1, 2001, Respondent had used six days of vacation,

eight days of paid leave, and four and a - half days of leave

without pay. This "abuse of sick leave" re sulted in a letter of

reprimand dated October 1, 2001, which was clearly intended to

warn Respondent to improve his attendance and required

validation of illness as referenced in the preceding paragraph.

17. Respondent was absent on September 1, 2002. He did

not provide a medical validation of the illness causing the

absence and, as a result, the absence was treated as an absence

without leave. On September 18, 2002, Respondent received a

letter of reprimand and a one - day suspension without pay due to

his failure to provide medical verification for this unpaid

leave day. This invoked the first step of progressive

discipline as contained in the Collective Bargaining Agreement.

18. On March 20, 2005, Respondent called in during the

late evening and left a m essage on his supervisor's voicemail

stating that he would not be at work the following day. The

message was vulgar and unacceptable. Respondent did not report

to work on March 21, 2005, and did not produce medical

verification for his absence.

19. On M arch 28, 2005, his supervisor recommended that he

be suspended from work without pay for this absence without

leave, his second offense in the progressive discipline system.

On April 7, 2005, Respondent received a letter from the

Superintendent notifying him that he would be follow ing the

supervisor's disciplinary recommendation for Respondent's

absence without leave. The Superintendent's letter clearly

references Respondent's failure to give appropriate prior notice

of absences "in accordance with practi ces established at each

cost center," and warns that future failure to comply "with

procedures established at the Facilities Center to properly

report and receive approval for future absences" would result in

discipline in accordance with the Collective Ba rgaining

Agreement .

21. On September 7, 2006, Respondent voluntarily entered

South Seminole hospital, a psychiatric facility. He was

discharged on or about September 25, 2006. Respondent's

condition required that he again be hospitalized on October 31,

2006 , for four days. Respondent was diagnosed as suffering from

bipolar disorder.

22. During his hospitalizations, Respondent was

administered various medications to treat his condition.

Following release from his second hospitalization, Respondent's

pres criptions were changed due to adverse side effects he was

experiencing.

23. In addition to being diagnosed with bipolar disorder,

Respondent also voluntarily sought treatment for substance abuse

at the Grove Counseling Center through the outpatient

drug/su bstance abuse program.

24. Respondent returned to work in November 2006, but was

still suffering from problems related to his medication. He was

late on November 8, 2006 , and absent on November 9, 2006.

Respondent had a meeting with his supervisor on No vember 10,

2006; it was the supervisor's intention to recommend Respondent

for termination for the tardiness of November 8, 2006, and

absence of November 9, 2006. On November 10, 2006, Respondent

advised his supervisor that he had been diagnosed with bipo lar

disorder in September 2006 and that he was having problems with

his medication. As a result of this conversation, instead of

being recommended for termination, Respondent was given time off

to adjust his medications, and it was agreed that Respondent

would return to work on January 2, 2007.

25. On January 9, 2007, approximately a week after

returning to work, Respondent called in at approximately

7:10 a.m., his work day begins at 6:30 a.m ., to advise that he

had overslept and would be late to work. Re spondent arrived at

work at 7:28 a.m., 58 minutes after the start of his work day.

26. As a result of this tardiness, Respondent's supervisor

recommended suspension and termination to the Superintendent for

a third offense of being absent without leave.

CO NCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter. § 120.57(1),

Fla . Stat . (200 7 ).

28. The burden of proof is on Petitioner to establish by a

preponderance of the evidence the allegations for t ermination

for just cause that are alleged in the Petition For Termination

dated M arch 9, 2007. McNeill v. Pinellas County School Board ,

678 So. 2d 476 (Fla. 1996).

29. Because the statute and rules providing grounds for

terminating Respondent's contract are penal in nature, they must

be construed in favor of the employee. See Rosario v. Burke ,

605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

Prof essional Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

30. Where the employee sought to be termin ated is an

"educational support employee," Petitioner must act in

accordance with the provisions of Section 1012.40, Florida

Statutes (2006), which provides, in part, as follows:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system who is employed as . . . a member of

the maintenance department, . . . or any

other person 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 pursuant to §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 bargaining 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

empl oyee's status shall continue from year

to year unless 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, or reduces the number of employees on

a district wide basis for financial reasons.

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

wri tten notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreeme nt.

31. Respondent, having completed his probationary period,

is a regular employee and is subject to discipline pursuant to

Article VII, Sections 5, 11 , and 15 of the Collective Bargaining

Agreement dated July 1, 2006 , through June 30, 2010.

32. The ref erenced Collective Bargaining Agreement ,

states, in pertinent part, as follows:

ARTICLE VII – EMPLOYMENT CONDITIONS

DISCIPLINE AND TERMINATION

Section 5.

A. Regular employees who have been hired

for a minimum of three (3) continuous years

(without a b reak in service) shall not be

disciplined (which shall include

reprimands), suspended or terminated except

for just cause.

* * *

C. An employee may be suspended without pay

or discharged for reasons including, but not

limited to, the following p roviding just

cause is present:

1. Violation of School Board Policy

2. Violation of work rules .

* * *

8. Excessive tardiness

Section 11. Absence Without Leave

A. Employees will be considered absent

without leave if they fail to notify the ir

principal, appropriate director or

supervisor that they will be absent from

duty and the reason for such absence.

B. Absence without leave is a breach of

contract and may be grounds for immediate

dismissal.

* * *

Section 15.

Employees shal l report absences and the

reason for such absences prior to the start

of their duty day in accordance with

practices established at each cost center.

An employee who has been determined to have

been AWOL shall be subject to the following

progressive disci pline procedures:

1st Offense - Written reprimand and one day

suspension without pay .

2nd Offense - Five day suspension without

pay .

3rd Offense - Recommended for termination.

Each day that an employee is AWOL shall be

considered a separate offense. How ever, any

documentation of offenses in this section

shall be maintained in the employee's

personnel file.

32. "Just cause" is some substantial shortcoming

detrimental to the employer's interests, which the law and a

sound public opinion recognize as a goo d cause for dismissal.

A discharge for just cause will be upheld if it meets two

criteria: (1) it is reasonable to discharge the employee

because of misconduct ; and (2) the employee had notice, express

or fairly implied, that such conduct would be ground s for

discharge. I n R e Grievance of Towel , 655 A.2d 55 (Vt. 1995).

The criteria for determining just cause for

dismissal must be based on merit. The

standards must be job - related and in some

rational and logical manner touch upon

competency and ability. All that just cause

requires is that the cause for dismissal not

be religious or political, but concerned

solely with the inefficiency, delinquency,

or misconduct of the employee. Civil

Service Commission v. Poles , 573 A.2d 1169

(Pa. Commw. Ct. 1 990) .

3 3. The maintenance department has established a practice,

as contemplated in Article VII, Section 15 of the Collective

Bargaining Agreement , which gives an employee a 15 - minute grace

period after the start of the work day to call in if he or she

is going to be late or absent. In the event an employee fails

to call in prior to the start of the work day or within the 15 -

m inute grace period, tardiness or absence is considered absence

without leave. These practices are consistently applied to all

maintenance department employees. As a general principle, the

construction of a statute or regulation by the administrative

agency charged with its enforcement and interpretation is

entitled to great weight and persuasive force, and the courts

will not depart from t hat interpretation unless it is clearly

erroneous . United States v. Seaboard Coast Line R.R. , 368 F.

Supp. 1079 (M.D. Fla. 1973); Daniel v. Florida State Turnpike

Authority , 213 So. 2d 585 (Fla. 1968); Cohen v. School Board of

Dade County , 450 So. 2d. 123 8 (Fla. 3 rd DCA 1984).

34. Respondent's excessive absenteeism has been adequately

documented, as was the potential for his termination from

employment. He was aware of the established notification

procedure utilized in the maintenance department in the ev ent of

prospective absence or tardiness. He was put on notice in each

of his annual assessments that his absenteeism was burdensome to

his department and that his performance in that regard needed

improvement or was unsatisfactory. He was the subject of

progressive discipline, receiving a one - day and five - day

suspension. Under the terms of the Collective Bargaining

Agreement , a third offense would warrant termination. He was

reminded of the probability of termination for a third absence

without leave by the Collective Bargaining Agreement , his

supervisor and the Superintendent of Schools. When he revealed

a medical condition and counseling for substance abuse, he was

given more than a month off to adjust his medication and "get it

together."

35. As p reviously stated, Petitioner has established that

it was the practice in the maintenance department to allow

employees to call in prior to the start of the work day and up to

15 minutes after the start of the work day to avoid discipline

for an absence or tardiness; that failure to do so would result

in an absence without leave. Respondent called in 58 minutes

after the start of the work day and was, therefore, absent

without leave. He had been given notice that a third absence

without leave could lead to additional discipline as contemplated

by the Collective Bargaining Agreement . If this was the sole

reason for termination, it would be questionable, but after

Respondent's seven - year history of absenteeism, Petitioner's

cautionary counsel, its considerat ion of Respondent's medical

problem, and progressive discipline, termination for this third

offense is appropriate. Petitioner has met its burden of proof

by showing a preponderance of competent, substantial evidence to

support termination for just cause as contemplated by the

Collective Bargaining Agreement . C f. I ndustries, Inc. v . Long ,

364 So. 2d 864 (Fla. 2d DCA 1978); Johnson v . School Board of

Dade County , 578 So. 2d 387 (Fla. 3d DCA 1991.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal o rder be entered finding

Respondent , Doug Porter , guilty of the allegations stated in the

Petition for Termination and that his employment be terminated.

DONE AND ENT ERED this 31st day of August , 2007 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 31st day of August , 2007 .

COPIES FURNISHED :

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlington Building, Suite 1 514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Bill Vogel, Superintendent

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Pamela Hubbell Cazares, Esquire

Chamblee, Johnson & Haynes, P.A.

51 0 Vonderburg Drive, Suite 200

Brandon, Florida 33511

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 b e filed with the agency that

will issue the Final Order in this case.