10-003355TTS Manatee County School Board vs. Brook Rainville Status: Closed Recommended Order on Thursday, October 28, 2010.

Summary: Petitioner met its burden of proving just cause to terminate employment of kindergarten teacher based on her excessive absenteeism.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 3355

)

BROOK RAINVILLE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to noti ce, a formal hearing was held in this case

on September 14, 2010, in Bradenton, Florida, before

Elizabeth W. McArthur, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Es quire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206 - 9069

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated June 2, 2010, the Superintendent of Schools

for Manatee County , Tim McGonegal (Superintendent), notified

Respondent, Brook Rainville (Ms. Rainville or Respondent), that

he intended to recommend her termination from employment for the

reasons set forth in an Administrative Complaint served with the

letter. The Admini strative Complaint, issued by Petitioner,

Manatee County School Board (School Board or Petitioner),

alleged that Respondent violated School Board Policy

6.2(2)(b)(2) by being excessively absent from work and that this

violation constituted just cause to te rminate Respondent's

employment.

Respondent timely requested an administrative hearing

involving disputed issues of material fact. On June 21, 2010,

the case was forwarded to the Division of Administrative

Hearings for assignment of an Administrative Law Judge to

conduct the hearing requested by Respondent. On June 24, 2010,

the School Board entered an Order suspending Respondent without

pay pending the outcome of the administrative hearing.

As a just - cause termination proceeding authorized by

Subsectio ns 1012.33(1)(a) and (6)(a), Florida Statutes (2009), 1

the parties were entitled to proceed to final hearing within

60 days after Respondent's request for an administrative hearing

was received pursuant to Subsection 1012.33(6)(a)2., Florida

Statutes. The parties jointly waived the 60 - day provision and

the final hearing was scheduled, in accordance with the parties'

request, for September 14, 2010.

At the final hearing, Petitioner presented the testimony

of Debra Horne, Linda Gamble, Rebecca Wells, Wendy Mungillo, 2

Sharon Tarantino, and Tim McGonegal. Petitioner's Exhibits 1

through 8 were received into evidence. Respond ent testified on

her own behalf and , also , presented the testimony of Alan

Valadie, M.D., by deposition. Respondent's Exhibits 1 throu gh 8

were received into evidence.

The Transcript of the final hearing was filed on

September 27, 2010. Both parties timely filed Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by the School Board as a

teacher since 1990. For the 2009 - 2010 school year, Respondent

was employed pursuant to a professional services contract as a

kindergarten teacher at Rogers Garden Elementary School (Rogers

Garden). S he was transferred to Rogers Garden from Wakeland

Elementary, where she had taught a pre - kindergarten class during

the previous school year.

2. The precipitating cause for the Administrative

Complaint against Respondent was that during the 2009 - 2010

scho ol year, out of the 190 school days when Respondent was

expected to be at work, she was absent for at least 95 days. 3

3. The School Board's policy on employee attendance, set

forth in Policy 6.2 of the School Board's promulgated Policies

and Procedures M anual, has as its basic premise that employees

are expected to be present and working at the job site at all

times.

4. If an employee is going to be absent from work,

authorization is required in the form of sick leave or other

approved absence. In gen eral, an employee such as Respondent,

accrues ten sick - leave days per ten - month school year. If not

used, accrued sick leave accumulates from year to year.

"Personal" leave sought for personal reasons, instead of medical

reasons , may be requested, and , i f allowed, comes out of accrued

sick leave. Once an employee runs out of accrued sick leave,

the options are either to borrow sick leave from the "sick leave

bank , " if the employee is eligible , or to request unpaid leave,

which may be allowed if the reaso n is substantiated. 4

5. Under School Board Policy 6.2(2)(b)(2), if an employee

is absent even one day without having obtained authorization,

the employee is subject to termination. Under the same policy,

even if authorization is obtained for an employee 's individual

absences, those absences can mount to the point that they become

"excessive." By the School Board's policy, excessive

absenteeism, even though authorized, subjects an employee to

termination because of the adverse impact on the school, the

s tudents, and the other employees.

6. The School Board policies do not adopt any bright - line

test quantifying what constitutes "excessive" absenteeism.

Instead, the circumstances are considered in each case. As the

Superintendent credibly explained, a u niform standard

quantifying excessive absenteeism for all School Board employees

would not make sense, because the impact varies depending on the

position the employee holds. A school district bears a greater

adverse impact from absences by a classroom te acher than from

absences by most other types of employees. The classroom

teacher's ongoing presence is critical to carrying out the

school district's educational mission because of the

relationships the teacher builds with his or her students. The

advers e impact from teacher absences is probably greatest for a

kindergarten teacher, because kindergarten students are most

vulnerable to harm from disruption in the classroom routine and

teacher changeover.

7. The Superintendent explained the factors he cons iders

when assessing a complaint of excessive absenteeism. He would

consider whether the employee's absences exceed average absences

for other employees. He would review the employee's overall

record, including indicators of performance issues or

discipl inary matters. He would consider mitigating

circumstances, such as the reasons for the absences. All of

these factors would be judged in the context of what position

the employee was holding when the absences occurred, so as to

consider what adverse impa cts were imposed on the school system.

8. Wendy Mungillo, principal of Rogers Garden for the

2009 - 2010 school year, became concerned about Respondent's

attendance by January 2010. The issue was brought to her

attention by other teachers who were par t of the kindergarten

team, because the others were having to pick up the slack.

Lesson plans for Respondent's kindergarten class were not always

completed to the extent that a substitute could carry them out.

Substitutes could not always be arranged qui ckly enough, so

coverage for Respondent's absences had to be provided through

the team.

9. By January 15, 2010, Respondent had called in sick on

15 work days, necessitating arrangements for multiple

substitutes. No medical documentation was requested fo r the

sick leave up to this point, because the Rogers Garden principal

was trying to give Respondent the benefit of the doubt, as is

her common practice.

10. Meanwhile, during this first half of the school year,

Ms. Mungillo was attempting to evaluate con cerns about

Respondent's performance in the classroom. The principal had

issued a Notice of Return to Documentation Program to Respondent

on September 21, 2009, identifying numerous areas of concern.

11. A Notice of Return to Documentation Program is is sued

when a principal has concerns about a teacher's performance in

the classroom. The notice triggers a process of formal

observations in which the principal schedules dates to attend

class to observe and evaluate the teacher while teaching in the

classr oom. For each classroom observation, the principal

prepares specific evaluation and feedback , in writing, and then

conducts and records a post - observation conference with the

teacher.

12. After Respondent was placed on the documentation

process, Ms. Mung illo was able to schedule and carry out only

one 30 - minute in - classroom observation on November 19, 2009, for

which a post - observation conference was conducted on

December 17, 2009.

13. A follow - up observation was supposed to take place on

January 15, 201 0, according to Ms. Mungillo's notes on

Respondent's attendance, but Respondent called in sick that day.

14. The next time the principal attempted to schedule an

observation, she described what happened in a written complaint,

as follows:

On Tuesday, Fe bruary 9th, I met with

Ms. Rainville to discuss several discipline

referrals she had written that were

inappropriate. I discussed with her that I

felt like she needed help in her classroom

with classroom management. At that time I

also set up an observat ion with her for

Friday, February 12th. I told her I wanted

to see her teaching math. When I asked her

when her math time was, she could not tell

me[,] only that it was after lunch. Later

that day she wrote me an email that stated

the following: "Wendy , I just realized that

the day we picked is the school Valentine's

Day. I also have company coming from Brazil

today. I would rather schedule this next

week, please, Brook . . . ."

15. Ms. Mungillo responded to Ms. Rainville's request to

cancel and r eschedule the classroom observation by stating that

she was "not willing to change the date." Ms. Mungillo noted

that there was no school - wide Valentine's Day activity planned

and asked what Respondent's company from Brazil had to do with

her teaching dut ies.

16. Respondent did not directly respond; instead, she

called in sick for February 10, 11, and 12, 2010. In effect,

she unilaterally cancelled the scheduled observation after she

was unsuccessful convincing Ms. M u ngillo to reschedule it.

17. Respond ent also missed, with virtually no notice, an

important exceptional student education (ESE) staffing meeting,

which had been scheduled for February 10, 2010. Respondent was

supposed to meet with persons from the ESE department and with

the parents of one of Respondent's students to address ESE

services for the student or problems the child was having.

Attendance of all participants at these meetings is very

important, not only because of the need to timely address the

subject of the meeting, but , also, be cause it is a challenge to

coordinate the scheduling of these meetings.

18. Respondent offered no explanation for her absences on

February 10, 11, and 12, 2010, either then or at the final

hearing. The implication is that she was not at work, because

she wanted to spend time with her company from Brazil, while

avoiding her classroom observation. Incidentally, her absence

caused, at a minimum, disruption to the ESE program, delay in

addressing the needs of one of her students, and inconvenience

to the par ents and others involved in scheduling the meeting.

19. Respondent's absence on February 12, 2010, was of

particular concern to Ms. Mungillo. Ms. Mungillo saw a pattern

to Respondent's absences, which were timed to avoid scrutiny of

Respondent's classroo m performance. Ms. Mungillo reasonably

became concerned that this pattern was more than just a

coincidence.

20. Ms. Mungillo was aware that Respondent had been

returned to the documentation process at Wakeland Elementary in

the prior school year. At a c onference in April 2009, the

principal at Wakeland Elementary gave Ms. Rainville a Notice of

Return to Documentation Program, identified the areas of concern

with Ms. Rainville's classroom performance and outlined

expectations. A memorandum summarizing th at conference noted

that a formal observation would not take place yet, but that a

meeting would be held on May 22, 2009, to review Ms. Rainville's

progress.

21. However, on the morning of May 22, 2009, before the

progress - review meeting could take place, Respondent had a fall

in her classroom. As she explained it, she fell forward over

the back end of a rocking chair and hurt her head and her right

knee (where she had had knee replacement surgery less than a

year earlier). Respondent filed a workers' co mpensation claim

and did not return to work for the remainder of that school

year.

22. Because of budget cuts, Respondent's position at

Wakeland Elementary was eliminated, and she transferred to

Rogers Garden for the beginning of the 2009 - 2010 school year .

Since Respondent never went back to the classroom at the end of

the 2008 - 2009 school year, the Wakeland Elementary principal was

never able to evaluate Respondent's classroom performance.

There is no performance evaluation in evidence for Respondent

fo r the 2008 - 2009 school year.

23. Ms. Mungillo attempted to continue the documentation

process started at Wakeland Elementary, but as noted, was only

able to conduct one 30 - minute classroom observation; the next

two times Ms. Mungillo tried to schedule ano ther classroom

observation, Ms. Rainville called in sick.

24. As it turned out, February 9, 2010 -- the day Respondent

asked to cancel the scheduled February 12, 2010, classroom

observation because of Valentine's Day and company from Brazil --

ended up being Respondent's last day at work to teach her

kindergarten class in the 2009 - 2010 school year. So just like

in the prior school year at Wakeland Elementary, Respondent's

absences interrupted the Rogers Garden principal's ongoing

effort to evaluate Respondent 's classroom performance. Just as

for 2008 - 2009, no performance evaluation is in evidence for

Respondent for the 2009 - 2010 school year.

25. On Friday afternoon, February 12, 2010, Ms. Rainville

contacted the claims adjuster from her 2009 workers'

compe nsation claim. She told him she wanted to re - open her

claim for re - treatment because her right knee was hurting.

Following a holiday, on February 16, 2010, Ms. Rainville was

authorized to have her knee checked. She saw a physician who

referred her to an orthopedic specialist and imposed interim

work restrictions that would have allowed Respondent to return

to work only if she could stay seated there. This was not

reasonably possible for a kindergarten teacher, so beginning on

February 16, 2010, Responde nt was authorized to take workers'

compensation leave.

26. On February 25, 2010, Respondent went to the

orthopedic specialist to whom she was referred, Dr. Shapiro. He

examined Respondent and determined that she had no work - related

injury. He also deter mined that Respondent was able to return

to work without any restrictions, despite her knee issue.

Dr. Shapiro conveyed the following work instructions for

Respondent to the School Board's Risk Management Department:

"No Restrictions/full duty work relea se to job position held

prior to this injury." Dr. Shapiro also reported that

Respondent has "[a]chieved Maximum Medical Improvement (MMI)"

and that Respondent was "[a]ble to return back to work on Monday

[March 1, 2010]." Respondent refused to acknowled ge these

instructions, because she disagreed with the doctor.

27. Despite being medically cleared to return to work,

Respondent called in sick on Monday, March 1, 2010, and again on

Tuesday, March 2, 2010. Ms. Mungillo called Respondent on

Tuesday morni ng to advise that medical documentation would be

required for her absences that week. Ms. Mungillo also told

Respondent that she had to know Respondent's intentions for her

employment for the rest of the year; if Respondent was going to

remain absent, Ms. Mungillo could arrange for a permanent

substitute, instead of the multiple substitutes they had been

scrambling to arrange on an ad hoc basis each time Ms. Rainville

called in sick.

28. On March 2, 2010, Ms. Mungillo submitted her concerns

about Responde nt's absences, along with Respondent's attendance

records thus far that school year, to Debra Horne in the Manatee

County School D istrict's Office of Professional Standards (OPS).

The OPS is the office that investigates matters of concern

involving employ ees, if the matters could lead to suspension

without pay or termination of employment. The OPS initiated an

investigation that same day.

29. Respondent's attendance records submitted by

Ms. Mungillo to the OPS showed that through March 2, 2010,

Responden t had been absent from work on 29 days when she was

expected to be at work; on 28 of those days, she should have

been teaching her kindergarten class. Instead, 11 different

substitute teachers covered Respondent's kindergarten class.

When substitutes cou ld not be found quickly enough, other

teachers had to provide coverage in addition to their own

teaching responsibilities.

30. In an effort to obtain the medical documentation

required by Ms. Mungillo for the week of March 1, 2010, on

March 4, 2010, Ms. Rainville went to see Dr. Alan Valadie, who

had performed knee replacement surgery on Ms. Rainville's right

knee in June 2008. He diagnosed "patellar clunk syndrome,"

which he described in his testimony as development of scar

tissue that can occur in pat ients who had knee replacement

surgery. This scar tissue catches at a point in the range of

knee motion and can cause a clicking sound, with or without

pain, at that point in the range of motion. The treatment for

patellar clunk syndrome is more knee sur gery to remove the scar

tissue.

31. Dr. Valadie concluded that Ms. Rainville should get

the follow - up knee surgery. He filled out a Family Medical

Leave Act (FMLA) application form for Ms. Rainville so that she

could apply for leave from work in order t o have the knee

surgery and allow time for post - surgical recovery. On the FMLA

application form completed by Dr. Valadie, he responded "no" to

the question asking whether the employee is unable to perform

any of her job functions due to the condition. Ho wever, he

indicated that after surgery, she would need a recovery period

when she would not be able to work.

32. Dr. Valadie did not indicate on the FMLA application

form whether the knee surgery he thought Ms. Rainville needed

had already taken place or was scheduled for some future date.

However, he specified that Ms. Rainville would require leave

from work beginning on March 1, 2010. No ending date was

provided despite the form calling for both a beginning and

ending date for the requested leave. In total, the application

was incomplete and confusing. If Ms. Rainville's pre - surgery

knee condition did not render her unable to perform any of her

job functions, then the only possible reconciliation of the

responses was that she had had her surgery on Ma rch 1, 2010, but

the form did not indicate that was the case.

33. Separate from the FMLA form, Dr. Valadie also filled

out a "Work/School Status Note," known as a "doctor's note,"

indicating that he had seen Ms. Rainville on March 4, 2010, and

instructing as follows: "Patient is to be off work starting

3 - 1 - 2010 until furthur [sic] notice."

34. As confirmed by Dr. Valadie's deposition testimony,

both the FMLA form and the doctor's note were misleading.

Dr. Valadie made clear that he thought he was fillin g out both

the FMLA form and the doctor's note so that Ms. Rainville could

arrange for leave in order to have the knee surgery and to have

a period of time off from work after surgery for recovery. But

Ms. Rainville did not have her knee surgery until Jul y 9, 2010.

35. Neither Dr. Valadie, nor any other physician, offered

any medical justification for Dr. Valadie's statements in the

FMLA application and the doctor's note that Ms. Rainville needed

to be excused from work beginning on March 1, 2010. Instea d,

the only evidence in the record related to Ms. Rainville's

medical status on March 1, 2010, was that Ms. Rainville was

fully cleared medically to return to work.

36. Dr. Valadie did not even see Ms. Rainville so as to

diagnose the condition he said ne eded surgery until March 4,

2010. When he saw Ms. Rainville then, his medical judgment

(like that of Dr. Shapiro) was that her knee condition did not

interfere with her performing any of her job functions, as he

indicated on the FMLA application.

37. W hen Ms. Rainville submitted the FMLA application form

filled out by Dr. Valadie, the school district staff handling

those applications began calling Ms. Rainville for additional

information, because the form was incomplete and seemingly

inconsistent. Most significant to an FMLA request, the

application lacked an end date, and it also lacked specific

information on when the surgery had been done or was scheduled,

so as to justify the beginning date. The s taff attempted to get

this information from Dr. Vala die, through Ms. Rainville. After

several weeks, Ms. Rainville informed staff that Dr. Valadie had

said the "end date" should be May 28, 2010, which coincides with

the maximum 12 - week leave allowed under the FMLA for this kind

of request. Dr. Valadie was supposed to submit written

confirmation of the medically necessary end date, but there is

no such written confirmation in the record , and it appears that

none was ever submitted. Ms. Rainville never responded to the

staff's telephone requests for informa tion regarding the surgery

that was the basis for the leave request, such as whether it had

occurred yet, and , if so, when.

38. After these unsuccessful efforts to obtain complete

information through telephone calls with Respondent, on May 5,

2010, Respon dent was given written notice of the continued

deficiencies in the FMLA application and documentation with one

final chance to provide the missing information. When no

revised application or additional information was received, on

May 17, 2010, the FMLA r equest was finally denied.

39. After Respondent conveyed an "end date" for her leave

request, which she said she obtained in a phone conversation

with Dr. Valadie, even though no written confirmation had been

received yet from Dr. Valadie, on March 11, 2010, Ms. Mungillo

signed an authorization for Respondent to take a regular

(non - FMLA) unpaid leave of absence from school from March 1,

2010, until May 28, 2010. This allowed Ms. Mungillo to hire a

permanent substitute for Respondent's kindergarten class .

Ms. Mungillo authorized this leave because of the apparent

medical necessity indicated by Dr. Valadie, even though the

explanation remained confusing and inconsistent.

40. Ms. Mungillo learned for the first time at the final

hearing that Ms. Rainville did not have knee surgery until

July 9, 2010, and that as of the final hearing date

(approximately one month into the 2010 - 2011 school year),

Ms. Rainville claimed she had not yet recovered to the point of

being able to return to work. Ms. Mungillo testi fied credibly

and without hesitation that she would not have approved

Ms. Rainville's leave of absence from March 1, 2010, if she knew

that Dr. Valadie did not think any leave of absence from work

was medically necessary until the knee surgery was actually

performed, which was not until July 9, 2010. Since the

authorization for Ms. Rainville's leave of absence was obtained

through misleading statements, that leave of absence should be

considered unauthorized. At the very least, the leave of

absence for th e period of March 1, 2010, through May 28, 2010,

was insufficiently documented with evidence of medical necessity

for the entire period of time. 5

41. Finally, to complete the school year, Pat Barber,

Ms. Rainville's union representative , submitted another sick

leave request for Ms. Rainville from June 1, 2010, through

June 10, 2010, the last day of school. Ms. Mungillo gave her

conditional approval, subject to receipt of a doctor's

certification within five days.

42. Ms. Barber submitted a prescription f or Ms. Rainville

apparently signed by Daniel Small, M.D., of the Sarasota

Arthritis Center, stating as follows: "Off work

5/28/10 ŗ 6/10/2010 due to continuing health problems. She is

unable to perform her duties as a teacher at this time." No

medical doc umentation or additional information was provided,

such as when Ms. Rainville saw Dr. Small, what "health problems"

were referred to, or how they interfered with Ms. Rainville's

duties as a teacher. While Ms. Rainville's testimony at final

hearing seemed to indicate that she was suffering from knee

pain, she did not explain why she went to a different doctor,

instead of the doctor whose care she was under for her knee

condition and who ultimately performed the surgery.

43. Upon the conclusion of the OPS i nvestigation into

Respondent's absenteeism, the results were presented to a panel

comprised of persons within Respondent's chain of command, and

the panel unanimously recommended to the Superintendent that

Respondent's employment be terminated for violatin g the School

Board policy against excessive absenteeism. Though not bound by

the panel's recommendation, the Superintendent concurred and

recommended that Respondent be terminated from employment.

44. The Superintendent reasonably considered Respondent's

overall record. While Respondent had favorable evaluations and

professional development plans up through May 2008, the

Superintendent took note of the performance concerns over the

last two school years. He reasonably considered the mid - stream

performan ce evaluations that were being attempted under the

Return to Documentation process at both Wakeland Elementary and

Rogers Garden, both of which were thwarted by Respondent's

absences for the remainder of each school year. The

Superintendent also took note of two written disciplinary

reprimands issued to Respondent, one in December 2008 at

Wakeland Elementary and the next in January 2010 at Rogers

Garden.

45. The Superintendent also reasonably considered

Respondent's history of absenteeism as far back as r ecords were

available, beginning in the 1993 - 1994 school year after

Respondent had been teaching for three years. Many of these

years reflect substantially more than the amount of paid leave

time Respondent could have been entitled to, even if she had

tak en no paid leave whatsoever during her first three years of

employment.

46. For example, in school year 1999 - 2000, Respondent used

more than twice the number of sick leave days than she accrued

that year. She did not have sufficient sick leave days acc rued

from prior years, because she was docked for two days' pay.

47. Again in the very next year, Respondent took more days

off than she was entitled to and was docked for another four

days of pay. This pattern continued with Respondent's pay

docked for excess absences beyond authorized paid leave in

2001 - 2002, 2003 - 2004, 2006 - 2007, and every year since then.

48. The magnitude of Respondent's absences in prior years

pales in comparison to the 2009 - 2010 school year. Indeed, the

testimony of several witne sses with many years of experience

handling these types of matters, including Superintendent

McGonegal, was that Respondent's absences greatly exceeded most

anything they had ever seen before. The absences were described

as "at the top" in terms of excess iveness.

49. Respondent attempted to establish that she was being

singled out for harsher treatment than others who had also been

absent a lot. However, no credible evidence was presented of

any incidents of absenteeism that were sufficiently similar to

Respondent's to be considered comparable. That the School Board

may have taken no disciplinary action against employees who took

more than ten days of sick leave in a single school year, fails

to establish any inequity in the proposed treatment of

Respond ent here. Respondent's 2009 - 2010 absences are of a

magnitude that is nearly ten - fold more than the attempted

comparison. The fact remains that Respondent's 2009 - 2010

absences, even if all authorized legitimately (as was found not

to be the case), easily meet or exceed any reasonable definition

of excessive. No similar case was shown to exist.

50. The Superintendent also reasonably considered the

progressive discipline approach apparently incorporated into the

Collective Bargaining Agreement (CBA) betwee n the School Board

and MEA. The Superintendent explained that the progressive

discipline policy, while preferred, is not required as a

lock - step approach in every case.

51. If the idea of progressive discipline is to allow an

employee to conform their conduct before receiving harsher

consequences, that would not have worked here, since most of

Respondent's absences were supposedly due to legitimate medical

issues. If Respondent was truly unable to come to work, warning

her that she may be terminated i f she continued to be absent ,

would not change her inability to come to work. In addition,

Respondent made it impossible to address concerns about her

mounting absences in performance evaluations because Respondent

kept calling in sick when her performanc e evaluations were

scheduled. Finally, the Superintendent reasonably considered

and rejected the lesser disciplinary step of suspension without

pay, because Respondent had already chosen to be absent without

pay. Under these circumstances, the Superinten dent reasonably

determined that he had the discretion to proceed to termination

within the parameters of the progressive discipline policy. No

evidence was presented to establish any different requirement.

CONCLUSIONS OF LAW

52. The Division of Administr ative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

53. In this proceeding, Petitioner seeks to terminate

Respondent's employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

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

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

54. The Superintendent has the aut hority to recommend

termination of instructional personnel, such as Respondent, to

the School Board. § 1012.27(5), Fla. Stat.

55. The School Board has the authority to terminate

instructional personnel pursuant to Subsections 1012.22(1)(f)

and 1012.33(6) (a), Florida Statutes.

56. "Just cause" is the standard established for

termination of instructional personnel pursuant to Subsection

1012.33(1)(a), Florida Statutes, as well as School Board Policy

6.11 and the CBA between the School Board and the MEA, of which

Respondent is a member.

57. Subsection 1012.33(1)(a), Florida Statutes, sets forth

a non - exclusive list of factors that may constitute "just

cause." The School Board has discretion in setting standards

for what constitutes "just cause" for taking disciplinary action

against employees, including termination. See Dietz v. Lee

County School Board , 647 So. 2d 217, 218 (Fla. 2d DCA (1994)

(Blue, J. concurring); see also § 1012.23(1), Fla. Stat.

(authorizing district school boards to adopt rules govern ing

personnel matters, except as otherwise provided by law or the

State Constitution).

58. Pursuant to School Board Policies 6.11(1) and

6.11(12)(c), just cause for termination from employment includes

"violation of the Policies and Procedures Manual of t he School

District of Manatee County[.]"

59. The Administrative Complaint charges Respondent with

violating School Board Policy 6.2(2)(b)(2), which provides as

follows:

Any absence from work without leave or

excessive absence with notice may be

consider ed grounds for termination. All

employees are expected to be in attendance

at work sites at all times. Excused

absences are the only exception to this.

Excessive absences even though excused, have

an adverse impact.

60. The School Board's policy regar ding excessive

absenteeism is reflected in other sections of the Policies and

Procedures Manual, with a slightly different emphasis. The

introductory language to School Board Policy 6.2 under the

heading , "Procedures , " states as follows: "Excessive

absen teeism, even though excused, has an adverse impact on

performance and is an issue to be addressed in performance

evaluation affecting continuing employment." Similar language

is set forth in School Board Policy 6.11(3)(d) (District Rules

of Work, Absence of Employees).

61. Respondent focuses only on the latter policy language

to argue that the School Board was required to raise the issue

of Respondent's excessive absenteeism in performance

evaluations, but failed to do so. However, School Board

Policy 6. 2(2)(b)(2), which is the one Respondent is charged with

violating in the Administrative Complaint, plainly provides that

excessive absenteeism may be grounds for termination.

Respondent's argument that the School Board was required to

first raise Responde nt's mounting absenteeism in a performance

evaluation before applying the discipline authorized by School

Board Policy 6.2.(2)(b)(2), must be rejected, particularly under

the circumstances proven in this case where Respondent's

repeated absences interfered with an ongoing return to the

documentation performance evaluation process. Simply put,

Respondent's performance could not be evaluated when Respondent

was never there teaching.

62. Respondent also argues that termination is not

available as discipline because Respondent's absences were

authorized. That argument must be rejected as contrary to the

School Board's policy. Excessive absences, even though

authorized, have an adverse impact and may be grounds for

termination. The focus of this policy is on the harm and

disruption caused by Respondent's chronic and excessive

absenteeism. The kindergarten students in Respondent's class

were deprived of consistency in routine and a solid relationship

with their teacher, and, instead, were forced to endure the

constant change in teaching styles and routine when Respondent's

ad hoc absences through the beginning of March, left the class

with 11 different substitute teachers in between Respondent's

occasional teaching presence. Respondent's colleagues were

force d to take up the slack for Respondent. The school system

was required to put additional resources into constantly

scrambling to make arrangements for Respondent's classes. In

addition, the lingering concerns over a two - year period about

Respondent's clas sroom performance never could be fully

evaluated or addressed because, legitimate or not, Respondent's

absences meant that she was not in the classroom teaching to be

evaluated.

63. Moreover, as found above, the authorization for many

of Respondent's abs ences was obtained by using a misleading

doctor's note. Had the truth been known, Respondent's absences

would never have been authorized. The absences were not

adequately documented with evidence of medical necessity as

required by the CBA. As such, Res pondent's absences could well

be considered unauthorized for purposes of applying the School

Board Policy 6.2(2)(b)(2), which provides that a single

unauthorized absence is sufficient grounds for termination.

64. Respondent also argues that the denial of her FMLA

application was questionable. This argument is rejected. The

evidence established that the FMLA application was properly

denied as incomplete and inconsistent. Despite giving

Respondent ample opportunity informally and formally to complete

and clarify the application, Respondent never gave adequate

information. On hindsight, that failure makes sense, because

accurate information clarifying the application's

inconsistencies would have confirmed that the application was

not approvable. Plainly p ut, Dr. Valadie did not believe that

Respondent had any serious health condition requiring leave from

work in March 2010. Rather, he made clear that leave from work

would not be medically necessary until Respondent had the knee

surgery and for a period of time after the surgery for recovery.

The incompleteness and inconsistencies in the FMLA application

form hid the real problems with the application and could not

have been corrected or clarified in a way to make the

application approvable.

65. Responden t does not really dispute that the magnitude

of Respondent's absences in the 2009 - 2010 school year were

excessive. By any reasonable definition of "excessive

absenteeism," Respondent's 2009 - 2010 work attendance record

plainly qualifies, even if most of th e absences had been based

on legitimate medical issues. See School Board of Dade County

v. Burton , Case No. 84 - 3584 (DOAH June 20, 1985; Final Order

Sept. 4, 1985) (Respondent's absences, notwithstanding the fact

that most were legitimate, were clearly ex cessive and sufficient

grounds for dismissal, impairing her effectiveness in the school

system and depriving her pupils of minimal educational

experience); accord Dade County School Board v. Schlecker , Case

No. 78 - 1074 (DOAH Oct. 25, 1979; Final Order Jan. 9, 1980) .

("Respondent's absences, notwithstanding the fact that most were

legitimate, considered with the fact that there is no reason to

believe that the chronic absenteeism will cease and the fact

that these absences disrupt the business of the school system

and cause hardship to the taxpayers as well as Respondent's

students, is sufficient grounds for dismissal of

Respondent [ . ] " ).

66. The lack of a quantified bright - line test for the

School Board's "excessive absenteeism" standard is appropriate

in th at it allows for consideration of all the circumstances.

Wright v. Department of Children and Families , 712 So. 2d 830,

831 (Fla. 3d DCA 1998)(court should consider all the

circumstances surrounding the employee's absences in determining

whether employee has been excessively absent so as to justify

the discharging employee).

67. Respondent argues that the proposed termination is

contrary to the progressive discipline policy, which is derived

from the CBA. Although Respondent introduced into evidence

othe r excerpts of the CBA, no evidence was presented of the

CBA's terms regarding progressive discipline. Therefore, it is

impossible to conclude that the proposed termination violates

any progressive discipline terms that may be in the agreement.

68. The Su perintendent's testimony established that his

recommendation that Respondent's employment be terminated is

consistent with his understanding of the progressive

disciplinary policy. As the Superintendent explained, while

progressive discipline is encourage d, rigid adherence to each

step in the progression is not required. Instead, there is

discretion in every case to consider the circumstances, and in

exceptional circumstances, termination may be warranted , even

though lesser disciplinary measures were not imposed. Those

exceptional circumstances exist here, as explained in the

Findings of Fact above.

69. Petitioner met its burden of proving, by a

preponderance of the competent, substantial, and more credible

testimony and evidence, that Respondent violat ed School Board

Policy 6.2(2)(b)(2), as charged in the Administrative Complaint.

Respondent's absences in the 2009 - 2010 school year alone, even

if authorized, where plainly excessive. The adverse impact of a

kindergarten teacher being gone from the class room as much as,

or more than, she was there cannot credibly be disputed.

70. Given the extraordinary magnitude of Respondent's

absences, the fact that lesser penalties would not be

appropriate for the violation and the fact that Respondent

secured appr ovals for more than half of her absences by using a

misleading doctor's note, termination is appropriate and fully

justified.

71. Petitioner has established by a preponderance of the

competent, substantial, and more credible evidence that there is

just ca use for Respondent's termination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that Petitioner, Manatee County School Board,

enter a Final Order terminating Respondent , Brook Rainville 's ,

employment .

DONE AND ENT ERED this 28th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of October , 2010 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

2/ Ms. Mungillo's name was Wendy Acosta when the documentary

evidence of record was created. She changed her name when she

got married at some point before the final hearing. Throughout

this Recommended Order, she will be referred to by her current

name for convenience, recognizing that she is referred to by her

former name in the exhibits.

3/ At the final hearing, the unrebutted testimony of numerous

witnesses was that through the end of the school year,

Resp ondent's absences totaled 95 days. However, according to

Petitioner's Proposed Recommended Order, five additional days

(categorized at "docked" days for which Respondent was not paid

because she was absent) were left out of the 95 - day total. It

is unnece ssary to resolve this apparent discrepancy, because

there is no dispute that Respondent was absent for at least

95 days, representing one - half of the entire school year; the

additional five days would not materially affect the recommended

findings or concl usions herein.

4/ The CBA between the School Board and the MEA, of which

Respondent is a member, confirms that a teacher is entitled to

ten days of paid sick leave per ten - month school year, available

when the teacher is unable to perform duties because of illness.

Personal leave may be available with 24 hours' notice, out of

accumulated sick leave. Additional unpaid leave for illness

must be "satisfactorily substantiated by medical evidence . . .

[with] satisfactory documentation for the necessity for such

leave . . . [and with] beginning and ending dates of such leaves

. . . based on medical opinion."

5/ Arguably, Respondent sufficiently documented the medical

necessity for leave for the period from March 19, 2010, through

April 6, 2010, during whic h time there was eight school days.

After Respondent was medically cleared to return to work on

March 1, 2010, by workers' compensation orthopedic specialist

Dr. Shapiro, Respondent exercised her right under the workers'

compensation laws to a one - time ch ange in her treating

physician. On March 19, 2010, Respondent saw Dr. Shortt, who

thought a bone scan was needed. In the interim, he thought

Respondent could go back to work with some restrictions, such as

no kneeling, no squatting, and no lifting of mor e than 20

pounds -- less than the "sitting only" restrictions imposed in

February by the general workers' compensation physician, but

still too restrictive for a kindergarten teacher. Therefore,

Respondent was on approved workers' compensation sick leave fr om

March 19, 2010, until April 6, 2010. On April 6, 2010, after

Respondent had her bone scan, Respondent saw Dr. Shortt again,

who adopted Dr. Valadie's diagnosis of patellar clunk syndrome.

However, he disagreed with Dr. Valadie that the primary cause

w as more likely than not Respondent's classroom fall on May 22,

2009. Instead, his opinion was that the syndrome was probably

the result of Dr. Valadie's knee replacement surgery. Based on

Dr. Shortt's assessment, Respondent's workers' compensation

claim was denied, and Respondent was referred back to

Dr. Valadie. Dr. Valadie did not communicate any change in

his opinion that Respondent was able to work, notwithstanding

her knee condition, up to the time of her knee surgery.

Dr. Valadie performed the kne e surgery on July 9, 2010.

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 E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal

Superintendent of Schools

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34205

Scott A. Martin, Esquire

Manatee Count y School Board

Post Office Box 9069

Bradenton, Florida 34206 - 9069

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.