11-005459TTS Palm Beach County School Board vs. Augustus Chappelle Status: Closed Recommended Order on Thursday, March 15, 2012.

Summary: As required by collective bargaining agreement, School Board proved by clear and convincing evidence just cause to dismiss educational support employee who failed to report to work. Program discipline met by earlier reprimand and suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH , )

COUNTY, FLORIDA, )

)

Petitioner , )

) Case No. 11 - 5459TTS

vs. )

)

AUGUSTUS CHAPPELLE , )

)

Respondent . )

)

RECOMMENDED ORDER

On January 30, 2012, Robert E. Meale, Administrative Law

Judge, conducted the final hearing by videoconference in

Tallahassee and West Palm Beach, Florida.

APPEARANCES

Petitioner: A. Denise Sagerholm, Esquire

Palm Beach County School B oard

Suite C - 323

3300 Forest Hill Boulevard

West Palm Beach, Florida 33406

Respondent: Augustus Chappelle, pro se

3249 C. Gardens East Drive

Palm Beach Gardens, Florida 33410

STATEMENT O F THE ISSUE

T he issue is whether Respondent may be dismissed from

employment for excessive absences and gros s insubordination,

pursuant to School Board Policies 1.013(1), 3.02(4)(a), (f), and

(j), 3.10(6), 3.27, 3.80(1), articles 17, sections 5 and 7, and

22 of the collective bargaining agreement, and sections

1012.22(1)(f), 1012.27(5), and 1012.76, Florida Statutes.

PRELIMINARY STATEMENT

By Notice of Suspension and Recommendation for Termination

of Employment mailed August 30, 2011, Petitioner ' s

superin tendent advised Respondent that he was recommending to

the School Board that it first , suspend Respond ent for 15 days

without pay and, second, terminate his employment for excessive

absences, gross insubordination, unethical conduct, and failure

to follow a policy, directive, or rule.

By letter dated September 20, 2011, Respondent requested a

formal hearing.

At the hearing, Petitioner called 9 witnesses and offered

in to evidence 25 e xhibits: Petitioner Exhibits 1 - 13, 15 - 17, 20,

22, 27 - 32, 34, and 39 - 40. A rriving at the hearing 90 minutes

late, Respondent called no witne sses and offered into evidence

no exhibits. All exhibits were admitted except Petitioner

Exhibits 15 and 32, which were proffered .

The court reporter filed the T ranscript on February 14,

20 12. Petitioner filed a P roposed R ecommended O rder on March 8,

2012. Respondent did not file a proposed recommended order by

the deadline of March 14, 2012.

FINDING S OF FACT

1. Respondent has been employed with Petitioner for ten

years. At all times, h e has been employed as a noninstructional

employee.

2. After he had been employed with Petitioner for one

year, Respondent began to miss work. Eventually, because he had

exhausted his sick leave, Respondent was required to produce a

physician ' s letter whenever he missed work.

3. On December 17, 2007, Petitioner issued Respondent a

written reprimand for falsification of a physician ' s letter.

Nine months later, on September 29, 2008, Respondent submitted

to Petitioner another falsified physician ' s let ter to justify an

absence on medical grounds. On August 10, 2010, Petitioner

issued a F inal O rder suspending Responde nt for 15 days for this

second falsification of a physician ' s letter.

4. By the time of the August 10, 2010, F inal O rder,

Respondent had already served his suspension and was reinstated

effective August 5, 2010. However, he still failed to report to

work as required. By September 27, 2010, he had missed 11 days

of work -- including every Monday and Friday in September.

Respondent also used sick leave prior to earning it and took

some days off without pay.

5. On September 27, 2010, Petitioner ' s Chief of Human

Resources issued a Memorandum of Specific Incident, which

details the information set forth in the preceding paragraph.

This memora ndum notes that Responde nt ' s absences negatively

impact the work of the other employees by causing workload to be

shifted to them. The memorandum requires Respondent to call a

named contact person 15 minutes prior to the start of his duty

day, if he is go ing to be late or absent from work, complete and

submit a form for sick leave within two days of returning to

work, and submit a physician ' s note for all future absences, if

for medical reasons. The memorandum concludes that the failure

to follow any of t he directives will be considered

insubordination and may result in termination. Confirming

receipt, Respondent signed the memorandum on September 29, 2010.

6. In cross - examination, Respondent raised a novel defense

to his employer ' s claim that his excess ive absences shifted work

to other employees: because Respondent, as an apprentice,

performed no useful work, his nonappearance was harmless to his

coworkers.

7. When reinstated in August 2010, Petitioner maintained

Respondent ' s classification as a Tec hnician Systems II , but

reassigned him to the intercom shop as a trades helper.

Although the pay for a trades helper is less than a Technician

Systems II, Petitioner continued to pay Respondent the higher

pay of a Technician Systems II. Because Responden t was a mere

helper, he argued , the actual intercom technician could perform

the critical communications work without Respondent.

8. Respondent ' s claim that his work is nonessential is not

supported by a closer examination of the responsibilities of the

i ntercom shop. T he responsibilities of the intercom shop

include the maintenance of intercom communications systems at

187 schools comprising over 200 buildings. The intercom shop

employs five journeymen technicians whose territorial

responsibilities are coextensive with the 45 square miles of the

school district.

9. Intercoms are the spine of the communications systems

of Petitioner ' s schools. The announcement of critical life -

safety issues, such as lockdowns or bomb threats at a school ,

depend on an intercom system that is in good working order. An

inoperative intercom system may leave innocent bystanders

wandering the halls in danger because they have not heard the

lockdown announcement.

10. Although it is true that Petitioner always had to

assig n Respondent as part of a two - man team because Respondent

did not know how to repair intercom systems, it does not follow

that Respondent ' s absence from work was inconsequential. The

critical work of a helper in the intercom shop is to assist the

journeym an, who , after repairing the intercom system, must

perform an all - call through the school and classrooms to ensure

that the intercom system has been restored to operational

status. The journeyman assign s the helper to remote locations,

such as hallways an d classrooms, to confirm that the repaired

intercom system is working throughout the building. When

Respondent failed to report to work, no intercom - shop

representative was available to perform these duties, and the

intercom - shop supervisor sometimes had to reschedule critical

repair work. This is the very definition of a negative impact

on coworkers .

11. Respondent also failed to comply with other attendance

policies and procedures. For instance, on November 1, 2010,

Respondent called the named contact person to advise that he was

taking a personal day, even though Respondent ' s policies and

procedures require at least 24 hours ' notice. Fluctuating in

and out of paid status, Respondent continued to resist reporting

to work on the duty days -- Mondays and Fridays -- that defined the

start and end of the work week. W hen at work, Respondent took

excessive breaks, such as at a " local business " located at the

corner of Melaleuca and Military Trail between 8 : 00 a .m. and

9 :00 a.m.

12. On November 4, 2010, Petitio ner issued another

memorandum confirming the directives contained in the

September 27, 2010, memorandum, detailed above. Confirming

receipt, Respondent signed a copy of the memorandum on the same

date.

13. But attendance problems continued. In general, since

his reinstatement on August 5, 2010, through November 19, 2010,

Respondent missed 23% of his duty days.

14. Ignoring the requirement to call at least one hour

prior to the start of the duty day, Respondent called one - half

hour or less on January 5, 6, 12, and 13. On March 1, 2011,

ignoring the requirement of 24 hours ' notice, Respondent called

in about 75 minutes prior to the start of the duty day to say he

was taking a personal day. And on January 6, 7, 12, and 13,

Respondent used sick leave that had not yet been earned and

credited. A memorandum dated March 15, 2011, concludes that

Respondent ' s continued failure to follow previously issued

directives constitutes gross insubordination and warns that any

future failure to follow directives will re sult in disciplinary

action, including termination. Respondent refused to sign this

m emorandum to evidence receipt.

1 5 . And, one week later, Respondent again called in, 11

minutes short of the one hour in advance of the start of the

duty day, to report t hat he would not be at work. This

failure - - innocuous, perhaps, in isolation, but grave, to be

sure, in context -- drove Petitioner to start the process that

resulted in the recommendation of the superintendent, by notices

dated August 30 and Septem ber 20, 2 011, first to suspend and

then terminate Respondent , and the School Board to approve and

adopt this recommendation at its special meeting of October 5,

2011.

16 . In sum, for the 14 - month period from August 5, 2010,

through October 5, 2011, Respondent repo rted for duty on about

42% of his duty days. Of the 58 % of the duty days that

Respondent missed, 89% resulted in unpaid leave.

17 . Article 17.1 of the collective bargaining agreement

that applies to Respondent provides for disciplinary action

based on cl ear and convincing evidence. Article 17.5 allows for

consideration of prior discipline, if it is " reasonably related "

to the subject charge. Article 17.6 provides for a range of

discipline: in ascending order, verbal reprimand, suspension

without pay, a nd dismissal. Article 17.7 requires progressive

discipline, which suggests that a dismissal be preceded by a

suspension wit h out pay and a suspension without pay be precede d

by a reprimand.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat.

19 . Respondent is an " educational support employee. "

§§ 1012.01(6) and 1012.40(1)(a), Fla. Stat. Petitioner may thus

terminate Respondent ' s employment for any ground stated in the

collective bargaining agreement. § 1012.40(2)(b), Fla. Stat.

20 . Under the collective bargaining agreement, Petitioner

has the burden of proving by clear and convincing evidence just

cause for dismissing Respondent. Respondent ' s studied disregar d

of the need to work in order to maintain a job constitutes just

cause for his dismissal. Petitioner has dutifully employed

progressive discipline in accordance with the collective

bargaining agreement -- to no avail.

RECOMMENDATION

I t is RECOMMENDED that the School Board enter a final order

dismissing Respondent from employment.

DONE AND ENTERED this 15th day of March, 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

1230 Apalachee Parkway

Tallahassee, 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 15th day of March, 2012 .

COPIES FURNISHED :

A. Denise Sage rholm, Esquire

Palm Beach County School Board

Suite C - 323

3300 Forest Hill Boulevard

West Palm Beach, Florida 33416 - 9239

[e-mail]

Augustus Keith Chappelle

3249 C Gardens East Drive

Palm Beach Gardens, Florida 33410

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 W. Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 W. Gaines Street

Tallahassee , Florida 32399 - 0400

E. Wayne Gent, Superintendent

Palm Beach County Schools

3300 Forest Hill Boulevard

West Palm Beach, Florida 33406 - 5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fr om 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.