11-001736TTS Seminole County School Board vs. Mary A. Williams
 Status: Closed
Recommended Order on Thursday, July 28, 2011.


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Summary: Employee was absent without leave and failed to comply with a directive to request leave.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SEMINOLE COUNTY SCHOOL BOARD , )

13)

14Petitioner , )

16)

17vs. ) Case No. 11 - 1736

24)

25MARY A. WILLIAMS , )

29)

30Respondent . )

33)

34RECOMMENDED ORDER

36Pursuant to not ice, a final hearing was held in this case

48on June 8, 201 1 , in Sanford, Florida, before Susan B. Harrell, a

61designated Administrative Law Judge of the Division of

69Administrative Hearings.

71APPEARANCES

72For Petitioner: Ned N. Julian, Jr., Esquire

79Seminole County School Board

83400 East Lake Mary Boulevard

88Sanford, Florida 32773 - 7127

93For Respondent: Theobie Wells, Jr.,

98Qualified Representative

100Post Office B ox 1334

105Sanford, Florida 32772 - 1334

110STATEMENT OF THE ISSUE

114The issue in this case is whether Petitioner has just cause

125to terminate Respondent's employment.

129PRELIMINARY STATEMENT

131By letter dated March 11, 2011, William Vogel, as

140s uperinte ndent of p ublic s chools for Seminole County, Florida,

152notified Respondent, Mary A. Williams (Ms. Williams) , that he

161would be recommending to Petitioner, Seminole County School

169Board (School Board) , that Ms. Williams be terminated from her

179employment with t he School Board. By letter dated March 28,

1902011, Ms. Williams requested an administrative hearing. On

198April 12, 2011, a Petition for Termination (Petition) was issued

208and forwarded to the Division of Administrative Hearings. The

217Petition alleged that Ms . Williams had been absent without leave

228for more than three days.

233On May 17, 2011, the School Board filed a Motion for Leave

245to Amend the Petition to add a charge of insubordination. The

256motion was granted by Order dated May 24, 2011, and the Amended

268Pet ition for Termination (Amended Petition) was deemed filed on

278May 24, 2011.

281At the final hearing, the School Board called the following

291witnesses: Virginia Fisher, Cynthia Frye, Steve Bouzianis, John

299Reichert, and Bill Vogel. Petitioner's Exhibits 1 throu gh 4, 6,

3107, 14, and 15 were admitted in evidence. Ms. Williams testified

321in her own behalf. Respondent's Exhibit 1 was admitted in

331evidence.

332The one - volume Transcript was filed on July 6, 2011. The

344parties agreed to file their proposed recommended order s within

35415 days of the filing of the Transcript. The parties timely

365filed their proposed recommended orders, which have been

373considered in the preparation of this Recommended Order.

381FINDINGS OF FACT

3841. Ms. Williams has been employed by the School Board for

39515 years and is currently a 12 - month custodian at Longwood

407Elementary School (School), located in Seminole County, Florida.

415As a 12 - month custodian, Ms. Williams is allowed sick and annual

428leave.

4292. Ms. Williams requested leave beginning July 7, 2010 , to

439September 29, 2010, for back surgery. On August 10, 2010, the

450School received a letter dated July 8, 2010, from Ms. Williams's

461physician , advising that Ms. Williams had undergone surgery for

470a spinal disorder on July 7, 2010, and would need 12 weeks to

483recover prior to returning to work.

4893. On October 1, 2010, Ms. Williams called the School and

500advised that she was not able to return to work and requested

512leave from September 30, 2010, through October 28, 2010. Her

522physician sent a letter dated Sept ember 30, 2010, to the School ,

534advising that Ms. Williams would need an additional four weeks

544for recovery. By this time, Ms. Williams had exhausted all her

555paid leave and was on leave without pay. Ms. Williams was

566unable to come to the School to sign th e application for leave;

579however, the leave was approved by the principal of the School,

590Virginia Fisher (Ms. Fisher) , who was Ms. Williams' s direct

600supervisor.

6014. By November 2, 2010, Ms. Williams was still unable to

612return to work, and her physician sen t another letter to the

624School , advising that Ms. Williams would need an additional four

634weeks for recovery. Ms. Williams requested leave from

642November 2, 2010, to November 30, 2010. Again, Ms. Williams was

653unable to come to the School to sign the applic ation for leave,

666but it was approved by Ms. Fisher.

6735. By December 1, 2010, Ms. Williams was still unable to

684return to work and requested leave from December 1, 2010,

694through January 3, 2011. Her physician sent a letter to the

705School, stating that Ms. Wi lliams needed an additional four

715weeks for recovery. Ms. Williams was unable to come to the

726School to sign the application, and the leave request was

736approved by Ms. Fisher.

7406. Ms. Williams' s physician sent a letter dated

749December 27, 2010, to the School , stating that Ms. Williams had

760not quite reached maximum medical improvement with respect to

769her recovery and that he would need to see her in four weeks for

783reevaluation. Ms. Williams signed and submitted an application

791for leave for January 4, 2011, th rough January 24, 2011. The

803leave was approved.

8067. Ms. Williams' s physician submitted a Return to

815Work/School Certificate dated January 21, 2011, to the School,

824stating that Ms. Williams would be able to return to work on

836January 24, 2011, with the follo wing restrictions: "light duty

846with no repetitive lifting over her head, lifting restriction of

856± 30 lbs."

8598. Ms. Williams discussed the issue of light duty with

869Steve Bouzianis (Mr. Bouzianis) , director of Human Resources,

877Staffing and Operations for th e School Board. She told him that

889she had been advised by staff at the School that she needed to

902come back to work or submit a request for additional leave.

913Mr. Bouzianis informed her that she could not do the custodial

924job with the restrictions set by he r physician. Ms. Williams

935was advised to submit a request for leave and was told that it

948would be approved.

9519. By February 18, 2011, Ms. Williams had not submitted a

962request for leave or submitted a letter from her physician

972stating that she needed to be absent from work due to an

984illness. By letter dated February 18, 2011, Ms. Fisher enclosed

994a leave request form and directed Ms. Williams to complete the

1005form and return it to her , along with a physician's statement

1016substantiating Ms. Williams's need for her absences no later

1025than February 23, 2011. Ms. Fisher further advised that , if

1035Ms. Williams could not obtain a physician's statement,

1043Ms. Fisher would approve the leave for the remainder of the year

1055as personal leave without pay.

106010. Ms. Fisher advis ed in the letter of the consequences

1071for failure to request leave and stated:

1078Should you fail to return to me your signed

1087request for leave form and the supporting

1094physician's statement (if applicable) by the

1100date identified above [February 23, 2011],

1106you will be considered as absent from duty

1114without approved leave, and in violation of

1121adopted School Board policy. In that event,

1128the Superintendent of Schools will recommend

1134to the School Board that you be suspended

1142from your duties and further that your

1149em ployment with the School Board of Seminole

1157County, Florida[,] be terminated.

116211. The School received a letter dated February 22, 2011,

1172from Ms. Williams's physician, who stated that Ms. Williams

1181could return to work on January 24, 2011, with the same

1192res trictions previously listed on the Return to Work/School

1201Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye) , who

1211is Ms. Fisher's assistant, attempted to call Ms. Williams at her

1222sister's telephone number, which is the number that Ms. Williams

1232had given the School to contact in case of an emergency. At the

1245time, Ms. Williams was living with her sister and staying some

1256of the time with her son. Ms. Frye called at 2:37 p.m. , and got

1270no answer , and called again at 3:15 p.m. , at which time she

1282spoke t o Ms. Williams's sister. Ms. Frye told the sister that

1294it was important that Ms. Williams call Ms. Frye.

130312. Ms. Williams had not called Ms. Frye by the morning of

1315February 24, 2011. Ms. Frye attempted to call Ms. Williams

1325twice during the morning of Fe bruary 24, 2011, and three times

1337during the afternoon. On the last call, she left a message with

1349Ms. Williams's sister that it was imperative that Ms. Williams

1359call Ms. Frye that night or Ms. Frye could not help

1370Ms. Williams.

137213. By March 4, 2011, the Sc hool still had not heard from

1385Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated

1395March 4, 2011, stating that , because Ms. Williams had not

1405contacted the School to request leave, Ms. Williams' s absences

1415since January 25, 2011, were considered as abs ences from duty

1426without approved leave. Ms. Fisher advised Ms. Williams that ,

1435based on Ms. Williams's third and continuing absences ,

1443Ms. Fisher would recommend to the superintendent of schools that

1453Ms. Williams's employment with the Seminole County Public

1461Schools be terminated.

146414. When questioned at the final hearing concerning her

1473reasoning for not requesting leave, Ms. Williams indicated that

1482she wanted to work, but the School would not let her come back

1495to work with light duty restrictions. She conta cted her

1505attorney and , based on his advi c e , did not request leave.

151715. Ms. Williams's employment is governed by the Official

1526Agreement between the Non - Instructional Personnel of Seminole

1535County Board of Public Instruction Association, Inc. , and the

1544School Board (Agreement). Article VII of the Agreement

1552provides:

1553Section 4.

1555* * *

1558B. A regular employee who has been hired

1566for four (4) or more years may only be

1575terminated for just cause except as

1581otherwise provided in A. above .

1587* * *

1590Sect ion 5.

1593A. Regular employees who have been hired

1600for a minimum of three (3) continuous years

1608(without a break in service) shall not be

1616disciplined (which shall include

1620reprimands), suspended or terminated except

1625for just cause.

1628* * *

1631C. An empl oyee may be suspended without pay

1640or discharged for reasons including, but not

1647limited to, the following provided that just

1654cause is present:

16571. Violation of School Board Policy

16632. Violation of work rules

16683. Insubordination -- Refusal to follow a

1675prope r directive, order, or assignment from

1682a supervisor

16844. While on duty, the possession and/or the

1692use of intoxicating beverages or controlled

1698substances after reporting for work and

1704until after the employees leaves the work

1711site after the equipment, if app licable, has

1719been checked in

17225. Endangering the health, safety or

1728welfare of any student or employee of the

1736District

17376. The conviction of a felony in the State

1746of Florida or notice of conviction of a

1754substantially parallel offense in another

1759jurisdicti on

17617. An act committed while off duty, which

1769because of its publication through the media

1776or otherwise adversely affects the

1781employee's performance or duties, or

1786disrupts the operations of the District, its

1793schools, or other work/cost centers

17988. Excess ive tardiness

18029. Damage to School Board property

180810. Improper use of sick leave

181411. Failure to perform assigned duties

182012. Other infractions, as set forth from

1827time to time in writing and disseminated by

1835the Superintendent or designee .

1840* * *

1843Section 11. Absence Without Leave

1848A. E mployees will be considered absent

1855without leave if they fail to notify their

1863principal, appropriate director or

1867supervisor that they will be absent from

1874duty and the reason for such absence .

1882B. Absence without leave is a breach of

1890contract and may be grounds for immediate

1897dismissal.

1898* * *

1901Section 15.

1903Employees shall report absences and the

1909reason for such absences prior to the start

1917of their duty day in accordance with

1924practices established at each c ost center.

1931An employee who has been determined to have

1939been AWOL shall be subject to the following

1947progressive discipline procedures:

19501st Offense -- Written reprimand and one day

1958suspension without pay.

19612nd Offense -- Five day suspension without

1968pay.

19693rd Offense -- Recommendation for termination.

1975Each day that an employee is AWOL shall be

1984considered a separate offense. However, any

1990documentation of offenses in this section

1996shall be maintained in the employee's

2002personnel file.

2004CONCLUSIONS OF LAW

200716. The D ivision of Administrative Hearings has

2015jurisdiction over the parties to and the subject matter of this

2026proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010). 1/

203517. The School Board has the burden to establish the

2045allegations in the Petition by a preponder ance of the evidence.

2056McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

20691996).

207018. As a custodial worker, Ms. Williams is considered to

2080be an educational support employee pursuant to section

20881012.40(1)(a), Florida Statutes. Section 1012.40 (1)(b)

2094provides:

2095(b) Upon successful completion of the

2101probationary period by the employee, the

2107employee's status shall continue from year

2113to year unless the district school

2119superintendent terminates the employee for

2124reasons stated in the collective barga ining

2131agreement, or in district school board rule

2138in cases where a collective bargaining

2144agreement does not exist, or reduces the

2151number of employees on a districtwide basis

2158for fina ncial reasons.

216219. The Agreement, which is the collective bargaining

2170agr eement applicable to the case, provides that regular

2179employees can be terminated only for just cause. The Agreement

2189also provides grounds for discipline, including termination.

2196Such grounds include insubordination and absence without leave.

220420. The Scho ol Board has established that Ms. Williams was

2215insubordinate when she failed to submit a request for leave

2225after being given a directive to do so by Ms. Fisher in her

2238letter dated February 18, 2011. Ms. Fisher advised Ms. Williams

2248that the consequence of not following the directive would be a

2259recommendation that Ms. Williams's employment be terminated.

2266Based on Ms. Williams's insubordination , there is just cause to

2276terminate her employment.

227921. The School Board has established that Ms. Williams has

2289been absent without leave since January 25, 2011. The Agreement

2299appears to have conflicting sections dealing with discipline for

2308being absent without leave. Article VII, Section 11 , provides

2317that being absent without leave may be grounds for immediate

2327termina tion. Article VII, Section 15 , sets forth progressive

2336discipline for being absent without leave going from a reprimand

2346for the first offense and culminating in termination for a third

2357offense. However, the same section also provides that each day

2367an empl oyee is absent without leave constitutes a separate

2377offense. Ms. Williams has had more than three offenses based on

2388the length of her absences without leave. Based on the length

2399of her absences without leave, there is just cause to terminate

2410her employme nt.

2413RECOMMENDATION

2414Based on the foregoing Findings of Fact and Conclusions of

2424Law, it is RECOMMENDED that a final order be entered terminating

2435Ms. Williams's employment with the School Bo ard.

2443DONE AND ENT ERED this 2 8 th day of July , 2011 , in

2456Tallahassee, Le on County, Florida.

2461S

2462SUSAN B. HARRELL

2465Administrative Law Judge

2468Division of Administrative Hearings

2472The DeSoto Building

24751230 Apalachee Parkway

2478Tallahassee, Florida 32399 - 3060

2483(850) 488 - 9675

2487Fax Filing (850) 921 - 6847

2493www. doah.state.fl.us

2495Filed with the Clerk of the

2501Division of Administrative Hearings

2505this 2 8 th day of July , 2011 .

2514ENDNOTE

25151/ Unless otherwise indicated, all references to the Florida

2524Statutes are to the 2010 version.

2530COPIES FURNISHED :

2533Gerard Robinson, C ommissioner of Education

2539Department of Education

2542Turlington Building, Suite 1514

2546325 West Gaines Street

2550Tallahassee, Florida 32399 - 0400

2555Lois Tepper, Interim General Counsel

2560Department of Education

2563Turlington Building, Suite 1244

2567325 West Gaines Street

2571Ta llahassee, Florida 32399 - 0400

2577Dr. Bill Vogel

2580Superintendent of Schools

2583Seminole County School Board

2587400 East Lake Mary Boulevard

2592Sanford, Florida 32773 - 7127

2597Ned N. Julian, Jr., Esquire

2602Seminole County School Board

2606400 East Lake Mary Boulevard

2611Sanford, Florida 32773 - 7127

2616Theobie Wells, Jr.

2619Post Office Box 1334

2623Sanford, Florida 32772 - 1334

2628NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2634All parties have the right to submit written exceptions within

264415 days from the date of this Recommended Order. Any exceptions

2655to this Recommended Order should be filed with the agency that

2666will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/19/2011
Proceedings: BY ORDER OF THE COURT: Ordered that the above style cause is dismissed filed.
PDF:
Date: 10/11/2011
Proceedings: Affidavit of Indigency filed.
PDF:
Date: 10/11/2011
Proceedings: Motion of Indigency filed.
PDF:
Date: 10/11/2011
Proceedings: Directions to Clerk filed.
PDF:
Date: 10/05/2011
Proceedings: Acknowledgment of New Case, Fifth DCA Case No. 5D11-3246 filed.
PDF:
Date: 09/29/2011
Proceedings: Affidavit of Indigency filed.
PDF:
Date: 09/29/2011
Proceedings: Motion of Indigency filed.
PDF:
Date: 09/29/2011
Proceedings: Notice of Appeal filed.
PDF:
Date: 09/29/2011
Proceedings: Directions to Clerk filed.
PDF:
Date: 09/29/2011
Proceedings: Letter to Dr. Bill Vogel from Claudia Llado regarding notices of appeal filed in the wrong lower administrative tribunal filed.
PDF:
Date: 09/28/2011
Proceedings: Motion to Strike Direction to Clerk and Affidavit of Indigency filed.
PDF:
Date: 09/28/2011
Proceedings: Amended Motion to Strike Notice of Appeal filed.
PDF:
Date: 09/28/2011
Proceedings: Notice of Appeal filed. (signed)
PDF:
Date: 09/23/2011
Proceedings: Notice of Appeal to the Fifth District Court of Appeal filed. (unsigned)
PDF:
Date: 09/22/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 09/13/2011
Proceedings: Agency Final Order
PDF:
Date: 08/03/2011
Proceedings: Exceptions to the Recommeded Order filed.
PDF:
Date: 07/28/2011
Proceedings: Recommended Order
PDF:
Date: 07/28/2011
Proceedings: Recommended Order (hearing held June 8, 2011). CASE CLOSED.
PDF:
Date: 07/28/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/21/2011
Proceedings: Petitioners Proposed Recommended Orders filed.
PDF:
Date: 07/19/2011
Proceedings: Proposed Recommended Order filed.
Date: 07/06/2011
Proceedings: Transcript (not available for viewing) filed.
Date: 06/08/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/01/2011
Proceedings: School Board's Witness List filed.
PDF:
Date: 05/24/2011
Proceedings: Order Granting Motion for Leave to Amend.
PDF:
Date: 05/18/2011
Proceedings: Objection to Motion for Leave to Amend filed.
PDF:
Date: 05/17/2011
Proceedings: Motion for Leave to Amend filed.
PDF:
Date: 05/10/2011
Proceedings: Order Denying Indigency.
PDF:
Date: 05/10/2011
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 05/02/2011
Proceedings: Affidavit of Thrbie Wells, Jr., for Appointment of Qualified Representative filed.
PDF:
Date: 05/02/2011
Proceedings: Motion for Appointment of Qualified Representative filed.
PDF:
Date: 05/02/2011
Proceedings: Motion Declaring Respondent Indent for Purposes of Taking Deposition filed.
PDF:
Date: 04/28/2011
Proceedings: Order Denying Motion to Strike Notice of Appearance.
PDF:
Date: 04/28/2011
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 04/28/2011
Proceedings: Motion for Appointment of Qualified Representative filed.
PDF:
Date: 04/28/2011
Proceedings: Motion to Strike Notice of Appearance filed.
PDF:
Date: 04/28/2011
Proceedings: Affidavit of Theobie Wells, Jr. for Appointment of Qualified Representative filed.
PDF:
Date: 04/27/2011
Proceedings: Notice of Deposition (of M. Williams) filed.
PDF:
Date: 04/25/2011
Proceedings: Notice of Appearance (filed by Theobie Wells).
PDF:
Date: 04/22/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/22/2011
Proceedings: Notice of Hearing (hearing set for June 8, 2011; 9:00 a.m.; Sanford, FL).
PDF:
Date: 04/19/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/13/2011
Proceedings: Initial Order.
PDF:
Date: 04/12/2011
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 04/12/2011
Proceedings: Agency action letter filed.
PDF:
Date: 04/12/2011
Proceedings: Petition for Termination filed.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
04/12/2011
Date Assignment:
04/13/2011
Last Docket Entry:
12/19/2011
Location:
Sanford, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
TTS
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):