08-006420TTS Sarasota County School Board vs. Timothy Gill Status: Closed Recommended Order on Thursday, June 18, 2009.

Summary: Petitioner proved cause for sleeping on job, but failed to prove just cause for excessive use of leave, as employee may have had vacation leave when he claimed excessive personal leave. Due to policy of progressive discipline, suspension, not firing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF SARASOTA )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 08-6420

)

TIMOTHY GILL, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Sarasota, Florida, on March 13, 2009.

APPEARANCES

For Petitioner: Hunter W. Carroll

Matthews, Eastmoore, Hardy,

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

For Respondent: Lisa J. Kleinberg

Law Offices of Kleinberg,

Ingram & Murphy, P.L.

2189 Ringling Boulevard

Sarasota, Florida 34237

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.

PRELIMINARY STATEMENT

By July 3, 2008, Petitioner's superintendent mailed a

letter to Respondent informing him that he had recently had two

separate meetings to discuss employment-related issues. In the

first meeting, Petitioner's Director of Facilities Services

spoke with Respondent and his union representative about

insubordination by using excess leave. In the second meeting,

Petitioner's Director of Facilities Services spoke with

Respondent and his union representative about insubordination

for twice sleeping in his vehicle when he should have been

working. The letter concludes that the superintendent will

recommend the termination of Respondent's employment to the

school board. After completion of a grievance process, the

superintendent sent Respondent a letter to the same effect,

dated December 9, 2008.

At the hearing, Petitioner called four witnesses and

offered into evidence eight exhibits: Petitioner Exhibits 1-3,

4-5, 6 (only letter of July 11, 2008), and 9-10. Respondent

called two witnesses and offered into evidence two exhibits:

Respondent Exhibits 1-2. All exhibits were admitted, except

Petitioner Exhibit 6 was not admitted for the truth of its

contents.

The court reporter filed the Transcript on March 27, 2009.

The parties filed proposed recommended orders by April 16, 2009.

FINDINGS OF FACT

1. On or about April 21, 2004, Petitioner hired Respondent

as a school custodian. Starting on December 11, 2007,

Petitioner transferred Respondent to Toledo Blade Elementary

School. One year later, Petitioner transferred Respondent to

the Transportation Department, which is the building housing the

transportation offices.

2. As a custodian, Respondent is a "classified" employee.

He is covered by the Classified Bargaining Unit Collective

Bargaining Agreement between the Sarasota Classified/Teachers

Association and Petitioner (the contract).

3. Twice on the morning of April 25, 2008, during working

hours and not while on a break, Respondent walked from his

worksite to his vehicle, climbed into the vehicle, and nodded

off to sleep. The first nap lasted for about one hour, and the

second nap lasted about one and one-quarter hours. The second

nap ended when Respondent's boss and the boss's boss walked out

to the vehicle where they found Respondent, who had put the

driver's seat down, laid out in the front driver's seat, with

the radio on, sound asleep. They woke him and ordered him back

to work.

4. Respondent's defenses are: 1) he was not asleep; he

was unconscious; and 2) he was suffering from extreme drowsiness

due to medications that he was taking following his recovery

from a three-month coma into which he had fallen two years

earlier.

5. Both of Respondent's defenses are makeshift. According

to Webster's online dictionary, "sleep" is the "natural periodic

suspension of consciousness during which the powers of the body

are restored." (http://www.merriam-

webster.com/dictionary/sleep, as found on June 17, 2009) If he

had suddenly lost consciousness at the worksite, no one would

claim he was sleeping on the job. Instead, without reporting

any difficulties to anyone, he walked out to his vehicle, made

himself comfortable, and fell asleep. The problem was that his

natural period of suspended consciousness coincided with time

during which Petitioner was paying him. The requisite

restorative effect is inferred. Nor is there any credence to

the claim of a medical condition or effect of a medication that

would leave Respondent unable to resist falling asleep while on

duty. Although ample opportunity existed, Respondent failed, on

the day in question, to bring to the attention of his supervisor

any medical reason for sleeping on the job, which was exactly

what he was doing.

6. Article XXI of the contract authorizes discipline for

"just cause." Sleeping while on duty, for over two hours prior

to lunch, constitutes insubordination and just cause for

discipline.

7. The leave issue is more complicated. Petitioner is on

a fiscal year starting July 1. For the entire year, classified,

12-month, hourly employees, such as Respondent, accrue six

personal days on July 1. For sick days, these employees accrue

one day at the end of July and three advance days. They then

accrue a day at the end of each following month through March.

Unused sick days rollover to the next year, but unused personal

days do not. Personal days count against the sick days. In

other words, if an employee has five sick days and six personal

days and uses a personal day, he will then have four sick days

and five personal days. Employees also earn vacation days.

8. As explained by Petitioner's payroll supervisor, the

payroll system facilitated recharacterizations between sick and

personal days. However, the system did not incorporate vacation

days in the same fashion. Thus, if an employee took off one

day, without claiming sick leave, and lacked one day of personal

time, the system would dock his pay, even though he might still

have had sufficient vacation time to absorb the time that he had

taken off.

9. For the 2007-08 school year, Respondent used "personal

leave charged to sick" as follows: September 12--8.0 hours;

September 24--8.0 hours; December 20--8.0 hours; December 21--

8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and

February 27--7.5 hours.

10. On February 27, Respondent missed the entire day of

work. Consistent with acceptable practices, on the next day, he

submitted a form entitled, "Certificate of Absence." In it,

Respondent requested approval for 8.0 hours of "personal leave

charged to sick," rather than one of the other categories, such

as sick leave or vacation leave. His supervisor signed the

form. When the payroll supervisor checked his balances, she saw

that he only had 7.5 hours of personal leave charged to sick,

so, on May 2, 2008, Respondent had to sign a form entitled,

"Request for Personal/Sick/Vacation Leave in Excess of Earned

Leave." This form requested approval for the use of 0.5 hours

of personal leave in excess of earned leave. The request was

disapproved by the Director of Facilities Services with a

signature bearing a date of March 13, 2008.

11. The payroll department's practice was not to deduct

personal leave charged as sick against vacation leave, if an

employee consumed all of his personal leave charged as sick.

12. On March 14, Respondent again requested 2.5 hours of

personal leave charged to sick. His supervisor noted on the

form that he "cautioned Tim to make sure he has the time

available--Tim told me that he does. 3-14-08." By this time,

it is unlikely that Respondent had received a new statement of

leave balance reflecting the 0.5 hours that he had been short

two weeks earlier. On May 2, 2008, Respondent signed another

request for permission to use personal leave in excess of earned

leave, and the Director of Facilities denied the request with a

signature bearing a date of March 27, 2008.

13. The same process took place again on April 11 for 8.0

hours on April 7. Petitioner notes that this request also

violated policy regarding custodial leave on the day immediately

after spring break, for which leave requests must be submitted

well in advance of the leave sought. Article XVII of the

contract requires a special procedure for leave on days

immediately preceding and following a school holiday, but the

emphasis in testimony was on the importance of adequate

custodial staff on such days. However, the purpose of this

policy is to address the needs of schools with respect to

returning students. Because Respondent was not assigned to a

school, nor had he been assigned to one temporarily for

returning students, he was not undermining this policy by

conforming to general policy, which allowed after-the-fact

requests.

14. In any event, as the payroll supervisor testified, it

is possible that Respondent still had vacation time each time

that Petitioner docked him for requesting personal leave charged

as sick when he had already exhausted his personal leave.

15. On these facts, Petitioner does not have just cause to

discipline Respondent on the ground of insubordination or any

other ground. There is no doubt that Respondent understood the

interplay between personal leave charged to sick and sick leave,

but there is considerable doubt as to, on the first two

occasions on which he overdrew on his balance of personal leave

charged to sick that he knew that he was doing so.

Additionally, there is a reasonable possibility that he had

available vacation leave, against which all of this time could

have been charged; absent proof from Petitioner precluding this

possibility, the entire dispute is reduced to the level of

finding the proper account to debit these relatively few hours

of missed work. This does not rise to insubordination, nor does

it constitute just cause for discipline.

16. Article XXI of the contract requires progressive

discipline, which constitutes a verbal reprimand, written

reprimand, suspension with or without pay, and dismissal. The

next step in progressive discipline for Respondent is suspension

with or without pay, not dismissal.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

Fla. Stat. (2008).

18. As an "educational support employee," pursuant to

Section 1012.40(1)(a), Florida Statutes, Respondent is subject

to termination for the reasons stated in the contract.

§ 1012.40(2)(b), Fla. Stat. (2008)..

19. Petitioner has the burden of proving the material

allegations of the charges by a preponderance of the evidence.

Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 3d

DCA 1990).

20. For the reasons set forth above, Petitioner has proved

just cause, in the form of insubordination, to discipline

Respondent for sleeping while on duty, but has failed to prove

just cause for disciplining Respondent for excessive use of

leave. Pursuant to the contract's requirements of progressive

discipline, Petitioner may not terminate or dismiss Respondent;

the most severe discipline that Petitioner may impose is

suspension with or without pay.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the School Board of Sarasota County,

Florida, enter a final order dismissing the charge of excessive

use of leave and finding Respondent guilty of the charge of

sleeping while on duty and suspending him, without pay, for five

working days.

DONE AND ENTERED this 18th day of June, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 18th day of June, 2009.

COPIES FURNISHED:

Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

Lisa J. Kleinberg, Esquire

Law Offices of Kleinberg,

Ingram & Murphy, P.L.

2189 Ringling Boulevard

Sarasota, Florida 34237

Mrs. Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3365

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

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 the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.