08-002720 Sarasota County School Board vs. Rebecca Willard Status: Closed Recommended Order on Tuesday, September 30, 2008.

Summary: Respondent`s willful absence from her job duties constitutes job abandonment and just cause for terminating her employment as a teacher`s aide.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2720

)

REBECCA WILLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on August 5, 2008, in Sarasota, Florida, before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Hunter, W. Carroll, Esquire

Matthews, Eastmoore, Hardy,

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

For Respondent: Rebecca Willard, pro se

Post Office Box 602

Nokomis, Florida 34274

STATEMENT OF THE ISSUE

Whether Petitioner, Sarasota County School Board ("School

Board"), has just cause to terminate Respondent, Rebecca

Willard's (Respondent), employment as a teacher's aide.

PRELIMINARY STATEMENT

By letter dated May 1, 2008, Respondent was notified that

the Superintendent of the Sarasota County School District

(School District) was recommending to the School Board that she

be terminated from her position as a teacher's aide in the

School District for job abandonment. Respondent challenged the

proposed termination and requested a formal hearing.

The matter was forwarded to the Division of Administrative

Hearings on June 9, 2008, for assignment of an Administrative

Law Judge to conduct the hearing and prepare a Recommended

Order. The matter was set for hearing and the proceeding

followed.

At hearing, the School Board presented the testimony of

three witnesses: Daniel Parrett, principal of Oak Park School;

Carol Perkins, an employee at Oak Park School; and Anna

Mulligan, an administrative assistant at Oak Park School. The

School Board's Exhibits 1 through 5 were admitted into evidence.

Respondent testified in her own behalf and offered no exhibits

into evidence.

A Transcript of the proceeding was filed on August 21,

2008. Petitioner filed a Proposed Recommended Order on

August 25, 2008, which has been considered in preparation of

this Recommended Order. Respondent did not file a Proposed

Recommended Order or other post post-hearing submittal.

FINDINGS OF FACT

1. Respondent was a teacher's aide at the Oak Park School

in Sarasota, which is operated by the School Board. Oak Park

School serves students with a broad range of special needs.

2. During the 2007-2008 school year, Respondent was a

teacher's aide in a classroom of six autistic children. The

disabilities of these children included aggressive and

non-verbal children, as well as a child who would run away if

not constantly supervised.

3. That classroom was led by one teacher and two aides,

including Respondent. That staffing level was necessary for

that classroom to ensure the safety of the children.

4. Respondent has a history of excessive absenteeism,

which she acknowledged. During the 2007-2008 school year, Oak

Park School principal Dan Parrett counseled her informally, and

later formally in a noticed meeting, for her excessive

absenteeism and reminded her of the critical need for her to be

present or inform administration of her absence in sufficient

time so that substitute coverage could be arranged.

5. Oak Park School maintained a designated answering

machine that staff would use to call in and notify the school of

an impending absence, if an employee had not previously notified

administration of the absence. For instance, if an employee

became ill during the night prior to work, that employee would

call the answering machine and advise that he or she was ill and

would not be at work. Oak Park School personnel reviewed the

messages on the designated answering machine at the beginning of

each morning (7:00 a.m.) and would arrange for substitutes for

those individuals who left messages that they would be absent.

6. Oak Park School personnel have a difficult time

arranging for a substitute if they first learn of an absence

later in the morning due to a lack of available substitutes.

7. At all times material to this case, Respondent was

aware of the answering machine and the need to inform the Oak

Park School administration of any upcoming absence.

8. Respondent failed to report to work at Oak Park School

on Monday, April 28, 2008; Tuesday, April 29, 2008; Wednesday,

April 30, 2008; and Thursday, May 1, 2008.

9. Respondent did not, nor did anyone on her behalf,

notify anyone at Oak Park School or anyone with the School Board

prior to these absences that she would not be reporting to work

on these dates.

10. Respondent did not, nor did anyone on her behalf,

leave a message on the answering machine at Oak Park School at

anytime from the end of the school day on Friday, April 25,

2008, through the afternoon of Thursday, May 1, 2008.

11. On May 1, 2008, the fourth consecutive day that

Respondent was absent from work without notifying anyone of her

absence, the Superintendent recommended Respondent's termination

for job abandonment.

12. Respondent testified that the reason she did not

report to work the week of April 28, 2008, or leave a message on

the answering machine was that she suffered from back spasms and

her phone was inoperable. Respondent, however, failed to

produce any document or witness to corroborate her statements.

13. Notwithstanding her contention that she could not

report to work at Oak Park School on April 28, 2008, or call to

advise of her absence, she worked at her second job on Sunday,

April 27 and, Monday, April 28, 2008. The undisputed evidence

established that Respondent worked at Nokomis Publix on both

Sunday, April 27, 2008 (during the afternoon and evening for

8.52 hours), and Monday April 28, 2008 (during the evening for

3.95 hours), which provided her access to a telephone and an

opportunity to notify Oak Park School of her absence. Publix's

time records for Respondent demonstrate that she was afforded

breaks both of those dates and she easily could have made a

telephone call and left a message on the Oak Park School

answering machine.

14. Because Respondent worked at Publix on Monday evening,

April 28, 2008, the assertion that she was suffering from severe

back spasms that day and the following days, which precluded her

from working at Oak Park School that day is not credible.

15. On April 27 and 28, 2008, Respondent was able to drive

to her job at Publix.

16. Respondent conceded that she had an operable motor

vehicle the week of April 28, 2008. However, Respondent

testified that she was unable to walk down the steps of her

apartment or house and drive to the location where she could

notify Oak Park School personnel that she would be absent. This

testimony is not credible. Contrary to her testimony,

Respondent could have notified personnel at Oak Park School,

either in person or by telephone prior to her absences, but she

did not.

17. Respondent was willfully absent from her teacher's

aide position at Oak Park School from April 28, 2008, through

and including May 2, 2008. Contrary to her testimony,

Respondent could have notified personnel at Oak Park School,

either in person or by telephone prior to her absences, but she

did not.

18. Respondent voluntarily abandoned her job with the

School Board and has no legitimate excuse for her absences.

19. Respondent never requested any type of leave of

absence (such as, family medical leave) associated with her

absences for the week of April 28, 2008, either before or after

that week.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569, 120.57, and 1012.33(6), Fla. Stat.

(2008).

21. As a teacher's aide, Respondent is an "educational

support employee" as defined by Subsection 1012.40(1)(a),

Florida Statutes (2007). 1/

22. The superintendent of the School District has the

authority to recommend to the School Board that any school

employee be suspended and/or dismissed from employment.

§ 1012.27(5).

23. The School Board has the authority to terminate and/or

suspend, without pay and benefits, any school employee,

including educational support employees. §§ 1001.42(5)(a),

1012.22(1)(f), and 1012.40(2)(c).

24. Section 1012.67 authorizes the School Board to

discharge any School Board employee who is willfully absent from

duty. That section provides:

Absence without leave.--Any 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 district school board.

This is the same version of the statute that was in effect at

the time the School Board entered into the current Collective

Bargaining Agreement relating to classified employees, such as

Respondent.

25. Pursuant to Section 1012.67, the School Board has the

authority to discharge any employee who is willingly absent from

work without leave.

26. An educational support employee who has successfully

completed the required and applicable probationary period can be

terminated only for the reasons set forth in the Collective

Bargaining Agreement, which governs these employees.

§ 1012.40(2)(b).

27. According to the applicable Collective Bargaining

Agreement, the School Board may exercise any right it has that

is consistent with the law and the Collective Bargaining

Agreement on matters, including the "discharge . . . [of] any

employees of the Board . . . for cause and to relieve such

employees from duty because of lack of work or for other

legitimate reasons."

28. The Collective Bargaining Agreement provides that

support employees can be terminated only for "just cause,"

although it does not define that term. See Article XXI, A.1. of

the Collective Bargaining Agreement.

29. The School Board has the burden of establishing just

cause to terminate Respondent by a preponderance of the

evidence. 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); see also § 120.57(1)(j), Fla.

Stat. (2008).

30. The School Board has met its burden in this case and

has established by a preponderance of the evidence that it has

"just cause" to terminate Respondent's employment.

31. The evidence established that Respondent was absent

from work four consecutive days and failed to call her assigned

school to notify appropriate school personnel that she would be

absent.

32. The evidence established and Respondent admits that

she was absent without notifying school officials. Respondent

contends that due to her medical situation, she was unable to

call the school. This contention is unpersuasive in light of

undisputed evidence that during that time period, Respondent was

working at another job during the evening. Respondent offered

no evidence to support this assertion.

33. Respondent's willful absence from her job duties for

four days constitutes job abandonment, which is "just cause" to

terminate her employment as a teacher's aide with the School

District.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Sarasota County School Board,

enter a final order that dismisses Respondent, Rebecca Willard,

from her position as a teacher's aide.

DONE AND ENTERED this 30th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September, 2008.

ENDNOTE

1/ All references are to 2007 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED :

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3365

Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

Rebecca Willard

Post Office Box 602

Nokomis, Florida 34274

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.