09-000153TTS Palm Beach County School Board vs. Karen Gadson Status: Closed Recommended Order on Monday, April 13, 2009.

Summary: Petitioner had "just cause" under the collective bargaining agreement to terminate Respondent for excessive absenteeism.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0153

)

KAREN GADSON, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.57(1), Florida Statutes, on February 27,

2009, by video teleconference at sites in West Palm Beach and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Sonia E. Hill-Howard, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

For Respondent: Karen Gadson

1711 Wedgewood Plaza Drive

Riviera Beach, Florida 33404

STATEMENT OF THE ISSUE

Whether Respondent's employment should be terminated for

the reasons set forth in the Petition.

PRELIMINARY STATEMENT

By letter dated November 21, 2008, the Palm Beach County

Superintendent of Schools (Superintendent) notified Respondent

that, at the December 3, 2008, meeting of the Palm Beach County

School Board (School Board), he would be recommending to the

School Board that it terminate Respondent's employment as a

custodian. The letter further advised Respondent of her right

to "request[] a hearing before the Division of Administrative

Hearings (DOAH)." Respondent subsequently requested such a

hearing. On January 12, 2009, the matter was referred to DOAH

for the assignment of an administrative law judge to conduct the

hearing Respondent had requested. Among the documents

transmitted to DOAH by the School Board was a Petition prepared

by the School Board's counsel of record and served on

Respondent. The Petition alleged that Respondent's record of

absenteeism warranted her termination

As noted above, the final hearing in this case was held on

February 27, 2009. Five witnesses testified at the hearing:

Cheryl Lombard, Robert Pinkos, Claudia Robbins, Angelette Green,

and Respondent. In addition to the testimony of these five

witnesses, 30 exhibits (Petitioner's Exhibits 1 through 3, 5

through 13, and 17 through 34) were offered and received into

evidence.

After the close of the evidentiary portion of the hearing,

the undersigned, on the record, established a deadline (15 days

from the date of the filing of the hearing transcript with DOAH)

for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on March 20, 2009.

On April 6, 2009, the School Board filed its Proposed

Recommended Order. To date, Respondent has not filed any post-

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing, and the

record as a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control, and supervision of all public schools (grades K through

12) in Palm Beach County, including Boca Raton Community High

School (BRCHS).

2. Respondent is employed by the School Board as a

custodian, but is currently under suspension pending the outcome

of these proceedings.

3. As a custodian employed by the School Board, Respondent

is a member of a collective bargaining unit represented by the

SEIU/Florida Public Services Union (SEIU) and covered by a

collective bargaining agreement between the School Board and

SEIU (SEIU Contract).

4. Article 7 of the SEIU Contract is entitled, "Employees

Contractual Rights." Section 2 of this article provides as

follows:

1. Upon successful completion of the

probationary period by the employee, the

employee status shall be continuous unless

the Superintendent terminates the employee

for reasons stated in Article 17 -

Discipline of Employees (Progressive

Discipline).

2. In the event the Superintendent seeks

termination of a continuous employee, the

School Board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined in accordance with Article 17 -

Discipline of Employees (Progressive

Discipline).

5. Article 8 of the SEIU Contract is entitled, "Management

Rights," and it provides, in pertinent part, that the School

Board has the right "to manage and direct its employees,

establish reasonable rules and procedures, take disciplinary

action for proper cause, and relieve its employees from duty

because of lack of work or for other legitimate reasons."

6. Article 17 of the SEIU Contract provides as follows:

1. Without the consent of the employee and

the Union, disciplinary action may not be

taken against an employee except for just

cause, and this must be substantiated by

clear and convincing evidence which supports

the recommended disciplinary action.

2. All disciplinary action shall be

governed by applicable statutes and

provisions of the Agreement. Further, an

employee shall be provided with a written

charge of wrongdoing, setting forth the

specific charges against that employee as

soon as possible after the investigation has

begun.

3. Any information which may be relied upon

to take action against an employee will be

shared promptly with said employee and

his/her Union representative as soon as

possible. Copies of any written

information/correspondence that is related

to the action of the employee or the

investigating administrator(s) will be

provided promptly to the employee and

his/her Union representative.

4. An employee against whom action is to be

taken under this Article and his/her Union

representative shall have the right to

review and refute any and all of the

information relied upon to support any

proposed disciplinary action prior to taking

such action. To this end, the employee and

the Union representative shall be afforded a

reasonable amount of time to prepare and

present responses/refutations concerning the

pending disciplinary action and concerning

the appropriateness of the proposed

disciplinary action. This amount of time is

to be mutually agreed upon by the parties.

5. Only previous disciplinary actions which

are a part of the employee's personnel file

or which are a matter of record as provided

in paragraph # 7 below may be cited if these

previous actions are reasonably related to

the existing charge.

6. Where just cause warrants such

disciplinary action(s) and in keeping with

provisions of this Article, an employee may

be reprimanded verbally, reprimanded in

writing, suspended without pay, or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent and final

action taken by the District. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable School

Board rules and regulations, progressive

discipline shall be administered as follows:

(A) Verbal Reprimand With A Written

Notation. Such written notation shall be

placed in the employee's personnel file and

shall not be used to the further detriment

of the employee, unless, there is another

reasonably related act by the same employee

within a twenty four (24) month period.

(B) Written Reprimand. A written reprimand

may be issued to an employee when

appropriate in keeping with provisions of

this Article. Such written reprimand shall

be dated and signed by the giver of the

reprimand and shall be filed in the affected

employee's personnel file upon a receipt of

a copy to the employee by certified mail.

(C) Suspension Without Pay. A suspension

without pay by the School Board may be

issued to an employee, when appropriate, in

keeping with provisions of this Article,

including just cause and applicable laws.

The length of the suspension also shall be

determined by just cause as set forth in

this Article. The notice and specifics of

the suspension shall be placed in writing,

dated, and signed by the giver of the

suspension and a copy provided to the

employee by certified mail. The specific

days of suspension will be clearly set forth

in the written suspension notice which shall

be filed in the affected employee's

personnel file in keeping with provisions of

Chapter 119 and 231.291 of the Florida

Statutes.

(D) An employee may be dismissed when

appropriate in keeping with provisions of

this Article, including just cause and

applicable law.

8. An employee against whom disciplinary

action(s) has/have been taken may appeal

through the grievance procedure. However,

if the disciplinary action(s) is/are to be

taken by the District, then the employee

shall have a choice of appeal between either

the Department [sic] of Administrative

Hearings in accordance with Florida Statutes

or the grievance procedure outlined in the

collective bargaining agreement. Such

choice must be exercised within fifteen (15)

days of receipt of written notification of

disciplinary action being taken, and the

District notified accordingly. If the

grievance procedure is selected, the

grievance shall be initiated at Step Three.

7. Prior to her suspension pursuant to Article 7, Section

2, of the SEIU Contract in December 2008, Respondent was

assigned to BRCHS.

8. Respondent started working as a custodian at BRCHS in

or around 2006. At the time, she was a full-time employee, with

hours from 2:30 p.m. to 11:00 p.m.

9. Respondent had poor attendance as a full-time employee.

10. In or around December 2007, at Respondent's request,

the School Board changed her status to a permanent part-time

employee, with a four-hour, instead of an eight-hour, work day,

five days a week. She continued to work an evening shift. It

was hoped that the change to part-time status would result in

improvement in Respondent's attendance.

11. Respondent's attendance, however, did not improve.

12. Consequently, on December 3, 2007, Cheryl Lombard, an

assistant principal at BRCHS, sent Respondent the following

memorandum concerning "[e]mployment [e]xpectations":

In order to improve your job performance the

following directives must be adhered to in

order for the school operations to run

efficiently:

- You are directed to report to duty at

your assigned time 4:00 p.m. Monday through

Friday, April 10, 2009.

- You are directed to work your complete

four-hour shift from 4:00-8:00 p.m. Monday

through Friday.

- You are directed to bring a doctor's note

for every absence stating the dates you were

under the doctor's care and that you have

been released to perform all job

responsibilities without restrictions.

- You are directed to notify the lead

custodian/night administrator anytime you

must leave campus during duty hours.

- You are directed to complete a TDE for

all absences, late arrivals, and early

dismissals from work.

- You are directed to follow your duty

schedule.

- You are directed to clean all assigned

areas in accordance with the procedures

outlined by the District.

- You are directed to complete all

assignments given in accordance with

directions given.

- You are directed to refrain from using

your cell phone except during your fifteen-

minute break. In case of emergency, please

contact Dr. Lombard.

- You are to report to the head

custodian/designee upon your arrival on

duty.

- You are directed to sign out with the

lead custodian every night.

- You are directed to speak to all staff

members and others in a professional manner

while on District property or on duty.

- You are directed to refrain from

threatening fellow custodians.

Failure to follow any of the above mentioned

directives will be considered

insubordination and may result in

disciplinary action up to and including

termination.

13. In December 2007, Respondent was absent without leave

and/or pay a total of 9.75 hours. She was also out on

medical/sick leave a total of 9.5 hours.

14. On January 25, 2008, Ms. Lombard issued Respondent a

verbal reprimand (which was followed-up by a "written

notation"). The written notation read as follows:

This correspondence is being given to you as

a Written Notation of a Verbal Reprimand for

Violation of School Board Policy 1.013 as it

pertains to insubordination for failure to

follow Directives Re: Attendance.

Specifically, you have had excessive tardies

and absences. Furthermore, you have failed

to produce a doctor's note stating that you

were under his/her care, as was required per

the memo you received on December 3, 2007.

You are directed to cease such conduct

immediately. Further, you are to desist

from engaging in the same or similar conduct

in the future. Failure to do so will result

in further disciplinary action up to and

including a recommendation for termination.

15. In January 2008, Respondent was absent without leave

and/or pay a total of 22 hours.

16. On February 6, 2008, Ms. Lombard issued Respondent a

written reprimand, which read as follows:

This correspondence is being given to you as

a Written Reprimand for insubordination Re:

Attendance after our January 25, 2008

meeting.

Specifically, on January 28 and February 4

you were absent and on January 30 you were

30 minutes late for your four (4) hour

shift.

Your conduct violated School Board Policy

1.013. Regardless of the circumstances that

may have brought them about, such

inappropriate actions and/or inactions on

your part do not reflect positively on your

position.

You are directed to cease such conduct

immediately. Furthermore, you are to desist

from engaging in the same or similar action

in the future. Failure to do so will result

in further disciplinary action up to and

including termination.

17. Respondent was out on medical/sick leave for a total

of approximately six weeks in February and March 2008.

18. On April 17, 2008, Ms. Lombard issued Respondent

another written reprimand. This written reprimand read as

follows:

This correspondence is being given to you as

a Written Reprimand for insubordination

regarding attendance after our April 15,

2008, meeting.

Specifically, on April 16, you were absent

for two and one half hours of your four hour

shift.

Your conduct violated School Board Policy

1.013. Regardless of the circumstances that

may have brought them about, such

inappropriate actions and/or inactions on

your part do not reflect positively on your

position.

You are directed to cease such conduct

immediately. Furthermore, you are to desist

from engaging in the same or similar action

in the future. Failure to do so will result

in further disciplinary action up to and

including termination.

19. In April 2008, Respondent was absent without leave

and/or pay a total of 21 hours.

20. In May 2008, Respondent was absent without leave

and/or pay a total of 36 hours.

21. Respondent's brother and father passed away in April

and May 2008, respectively.

22. In June 2008, Respondent was absent without leave

and/or pay a total of 51.5 hours.

23. In July 2008, Respondent was absent without leave

and/or pay a total of 21 hours. She was also out on

medical/sick leave a total of 15 hours.

24, Up to and including August 6, 2008, Respondent was

absent without leave and/or pay a total of 7.5 hours that month.

25. On August 6, 2008, the principal of BRCHS issued

Respondent a written directive, which read as follows:

On August 6, 2008, you met with Ms. Lombard,

Assistant Principal, and HR Manager Bob

Pinkos to discuss the seriousness of your

chronic absenteeism and tardiness. During

that meeting the Written Directive provided

you on December 3, 2007 addressing

attendance at work and compliance [with] the

duty schedule was discussed. Furthermore,

the following disciplinary actions have been

issued related to insubordination for

failure to adhere to the December 3, 2007

directives.

- January 28, 2007 [sic] Verbal Reprimand

with Written Notation issued for failure to

follow the December 3, 2007 directive.

- February 6, 2008, Written Reprimand

issued for insubordination for failure to

follow the December 3, 2007 directive.

- April 17, 2008, a second Written

Reprimand issued for insubordination for

failure to follow the December 3, 2007

directive.

A copy of the December 3, 2007 directive is

enclosed for your review. Although you have

received several disciplinary actions

advising you to comply with the December 3,

2007 [directive] your behavior with respect

to attendance at work and compliance [with]

your duty schedule continues to fail to meet

expectations. Future similar incidents, to

include those that may occur beyond the date

of this directive and related to failing to

follow the December 3, 2007 directive, will

be considered insubordination and subject to

disciplinary action up to and including

termination of employment.

Your immediate attention to this matter will

be appreciated as it would positively impact

the operation at Boca Raton Community High

School.

26. The remainder of the month of August 2008, Respondent

was absent without leave and/or pay a total of 22.25 hours and

out on medical/sick leave a total of 3.5 hours.

27. In September 2008, Respondent was absent without leave

and/or pay a total of 33.25 hours. She was also out on

medical/sick leave a total of 4 hours.

28. In October 2008, Respondent was absent without leave

and/or pay a total of 23.25 hours. She was also out on

medical/sick leave a total of 5 hours.

29. At the end of October 2008, following the completion

of an "administrative personnel investigation of Respondent's

"behavior with respect to attendance at work and compliance

[with her] duty schedule," a "pre-disciplinary meeting" was held

at which Respondent was given the opportunity to "explain or

rebut the outcome of the investigation." At the meeting,

Respondent acknowledged that she had "missed lots of time from

work," but she claimed that she had "been trying to improve her

attendance."

30. In November 2008, Respondent was absent without leave

and/or pay a total of 24.25 hours.

31. Respondent was out on medical/sick leave for her

entire four hour shift on December 1, 2008. On December 2,

2008, she was absent without leave and/or pay .25 hours. The

following day, she was suspended.

32. Respondent's poor attendance has adversely affected

others at BRCHS. Sometimes, the work Respondent was responsible

for was done, in her absence, by the other custodians at the

school, which "created a bit of unrest" because these custodians

also had their own work to do. On other occasions, when

Respondent was absent, the work she was assigned went undone,

which created a "problem for teachers [and their students] when

they c[a]me in the next morning" and had to deal with classrooms

that were not cleaned.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto.

34. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat.

35. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §

1001.42(5), Fla. Stat. ("The district school board, acting as a

board, shall exercise all powers and perform all duties listed

below: PERSONNEL.--. . . provide for the . . . suspension, and

dismissal of employees subject to the requirements of chapter

shall suspend, dismiss, or return to annual contract members of

the instructional staff and other school employees."); and §

1012.23(1), Fla. Stat. ("Except as otherwise provided by law or

the State Constitution, district school boards may adopt rules

governing personnel matters, including the assignment of duties

and responsibilities for all district employees.").

36. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat.

37. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or for other

legitimate reasons." § 447.209, Fla. Stat.

38. Where the employee is an "educational support

employee" who has successfully completed his or her probationary

period and the adverse action sought to be taken against the

employee is termination, the district school board must act in

accordance with the provisions of Section 1012.40, Florida

Statutes, which provides 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 teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, 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 s. 1012.39. This

section does not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(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

employee's status shall continue from year

to year unless the district school

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 districtwide basis

for financial reasons.

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written 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 agreement.

39. Respondent is an "educational support employee,"

within the meaning of Section 1012.40, Florida Statutes, who is

covered by a collective bargaining agreement (the SEIU

Contract).

40. Pursuant to Section 1012.40, Florida Statutes,

Respondent's employment may be terminated only "for reasons

stated in th[is] collective bargaining agreement."

41. Under the SEIU Contract, "disciplinary action may not

be taken against an employee except for just cause, and this

must be substantiated by clear and convincing evidence."

Moreover, absent compelling circumstances, the action taken must

be consistent with "progressive discipline."

42. At the final hearing in the instant case, the School

Board clearly and convincingly established that, over a 12-month

period, Respondent was excessively absent without authorization,

to the detriment of BRCHS staff and students, and that her

excessive absenteeism persisted despite reprimands and warnings

from her supervisors.

42. Having made such a showing, the School Board has met

its burden of proving that there are grounds to terminate

Respondent's employment under the SEIU Contract. Cf. Wright v.

Department of Children and Families , 712 So. 2d 830, 831 (Fla.

3d DCA 1998)("'[A]n essential element of employment is to be on

the job when one is expected to be there.'"); Commercial Carrier

Corp. v. LaPointe , 723 So. 2d 912, 918 (Fla. 1st DCA

1999)("Except in the unusual case where an employee can

effectively perform all work-related duties at home, an employee

'who does not come to work cannot perform any of his job

functions, essential or otherwise.' Therefore, a regular and

reliable level of attendance is a necessary element of most

jobs.")(citation omitted); Darby v. Bratch , 287 F.3d 673, 682

(8th Cir. 2002)("Presence at the job is no doubt essential,

except in cases where the job could be done from home, which is

not claimed here."); Nowak v. St. Rita High School , 142 F.3d

999, 1003 (7th Cir. 1998)("Obviously, an employee who does not

come to work cannot perform the essential functions of his

job. . . . The undisputed facts show that Nowak was unable to

perform an essential function--regular attendance--required of a

teacher at St. Rita."); Tyndall v. National Education Centers,

Inc., of California , 31 F.3d 209, 213 (4th Cir. 1994)("In

addition to possessing the skills necessary to perform the job

in question, an employee must be willing and able to demonstrate

these skills by coming to work on a regular basis. Except in

the unusual case where an employee can effectively perform all

work-related duties at home, an employee 'who does not come to

work cannot perform any of his job functions, essential or

otherwise.'"); Owens v. Unemployment Compensation Board of

Review , 748 A.2d 794, 798 (Pa. Commw. Ct. 2000)("In this case,

it is clear that Employer established and Claimant did not

contradict that she was excessively absent and had received many

warnings regarding her absenteeism according to Employer's

policy. Therefore, Employer has established a prima facie case

of willful misconduct."); and Falczynski v. Amoco Oil Co ., 533

N.W.2d 226, 232 (Iowa 1995)("As her work had to be completed by

other employees, Falczynski's chronic absenteeism plainly

prevented her from performing the essential functions of her

job. Indeed, she could not perform the quintessential function

of regularly attending work.").

43. Accordingly, Respondent's appeal of her proposed

termination must be rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the School Board issue a final order

sustaining Respondent's suspension and terminating her

employment with the School Board.

DONE AND ENTERED this 13th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 13th day of April, 2009.

COPIES FURNISHED:

Sonia E. Hill-Howard, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

Karen Gadson

1711 Wedgewood Plaza Drive

Riviera Beach, Florida 33404

Dr. Arthur C. Johnson

Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

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 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.