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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1736

)

MARY A. WILLIAMS , )

)

Respondent . )

)

RECOMMENDED ORDER

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

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

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

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

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

For Respondent: Theobie Wells, Jr.,

Qualified Representative

Post Office B ox 1334

Sanford, Florida 32772 - 1334

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 March 11, 2011, William Vogel, as

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

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

would be recommending to Petitioner, Seminole County School

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

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

2011, Ms. Williams requested an administrative hearing. On

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

and forwarded to the Division of Administrative Hearings. The

Petition alleged that Ms . Williams had been absent without leave

for more than three days.

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

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

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

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

May 24, 2011.

At the final hearing, the School Board called the following

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

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

7, 14, and 15 were admitted in evidence. Ms. Williams testified

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

evidence.

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

parties agreed to file their proposed recommended order s within

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

filed their proposed recommended orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

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

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

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

leave.

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

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

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

physician , advising that Ms. Williams had undergone surgery for

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

recover prior to returning to work.

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

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

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

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

advising that Ms. Williams would need an additional four weeks

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

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

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

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

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

supervisor.

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

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

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

weeks for recovery. Ms. Williams requested leave from

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

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

but it was approved by Ms. Fisher.

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

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

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

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

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

School to sign the application, and the leave request was

approved by Ms. Fisher.

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

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

not quite reached maximum medical improvement with respect to

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

reevaluation. Ms. Williams signed and submitted an application

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

leave was approved.

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

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

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

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

with no repetitive lifting over her head, lifting restriction of

± 30 lbs."

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

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

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

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

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

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

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

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

would be approved.

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

request for leave or submitted a letter from her physician

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

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

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

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

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

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

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

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

as personal leave without pay.

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

for failure to request leave and stated:

Should you fail to return to me your signed

request for leave form and the supporting

physician's statement (if applicable) by the

date identified above [February 23, 2011],

you will be considered as absent from duty

without approved leave, and in violation of

adopted School Board policy. In that event,

the Superintendent of Schools will recommend

to the School Board that you be suspended

from your duties and further that your

em ployment with the School Board of Seminole

County, Florida[,] be terminated.

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

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

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

res trictions previously listed on the Return to Work/School

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms. Williams.

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

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

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

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

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

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

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

Ms. Fisher would recommend to the superintendent of schools that

Ms. Williams's employment with the Seminole County Public

Schools be terminated.

14. When questioned at the final hearing concerning her

reasoning for not requesting leave, Ms. Williams indicated that

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

to work with light duty restrictions. She conta cted her

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

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

Agreement between the Non - Instructional Personnel of Seminole

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

School Board (Agreement). Article VII of the Agreement

provides:

Section 4.

* * *

B. A regular employee who has been hired

for four (4) or more years may only be

terminated for just cause except as

otherwise provided in A. above .

* * *

Sect ion 5.

A. Regular employees who have been hired

for a minimum of three (3) continuous years

(without a break in service) shall not be

disciplined (which shall include

reprimands), suspended or terminated except

for just cause.

* * *

C. An empl oyee may be suspended without pay

or discharged for reasons including, but not

limited to, the following provided that just

cause is present:

1. Violation of School Board Policy

2. Violation of work rules

3. Insubordination -- Refusal to follow a

prope r directive, order, or assignment from

a supervisor

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

use of intoxicating beverages or controlled

substances after reporting for work and

until after the employees leaves the work

site after the equipment, if app licable, has

been checked in

5. Endangering the health, safety or

welfare of any student or employee of the

District

6. The conviction of a felony in the State

of Florida or notice of conviction of a

substantially parallel offense in another

jurisdicti on

7. An act committed while off duty, which

because of its publication through the media

or otherwise adversely affects the

employee's performance or duties, or

disrupts the operations of the District, its

schools, or other work/cost centers

8. Excess ive tardiness

9. Damage to School Board property

10. Improper use of sick leave

11. Failure to perform assigned duties

12. Other infractions, as set forth from

time to time in writing and disseminated by

the Superintendent or designee .

* * *

Section 11. Absence Without Leave

A. E mployees will be considered absent

without leave if they fail to notify their

principal, appropriate director or

supervisor that they will be absent from

duty and the reason for such absence .

B. Absence without leave is a breach of

contract and may be grounds for immediate

dismissal.

* * *

Section 15.

Employees shall report absences and the

reason for such absences prior to the start

of their duty day in accordance with

practices established at each c ost center.

An employee who has been determined to have

been AWOL shall be subject to the following

progressive discipline procedures:

1st Offense -- Written reprimand and one day

suspension without pay.

2nd Offense -- Five day suspension without

pay.

3rd Offense -- Recommendation for termination.

Each day that an employee is AWOL shall be

considered a separate offense. However, any

documentation of offenses in this section

shall be maintained in the employee's

personnel file.

CONCLUSIONS OF LAW

16. The D ivision of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

17. The School Board has the burden to establish the

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

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

1996).

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

be an educational support employee pursuant to section

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

provides:

(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 barga ining

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 fina ncial reasons.

19. The Agreement, which is the collective bargaining

agr eement applicable to the case, provides that regular

employees can be terminated only for just cause. The Agreement

also provides grounds for discipline, including termination.

Such grounds include insubordination and absence without leave.

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

insubordinate when she failed to submit a request for leave

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

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

that the consequence of not following the directive would be a

recommendation that Ms. Williams's employment be terminated.

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

terminate her employment.

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

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

appears to have conflicting sections dealing with discipline for

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

that being absent without leave may be grounds for immediate

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

discipline for being absent without leave going from a reprimand

for the first offense and culminating in termination for a third

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

an empl oyee is absent without leave constitutes a separate

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

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

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

her employme nt.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

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

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

Tallahassee, Le on County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 2 8 th day of July , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

COPIES FURNISHED :

Gerard Robinson, C ommissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Ta llahassee, Florida 32399 - 0400

Dr. Bill Vogel

Superintendent of Schools

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Theobie Wells, Jr.

Post Office Box 1334

Sanford, Florida 32772 - 1334

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.