13-004956TTS St. Lucie County School Board vs. James Dailey Status: Closed Recommended Order on Thursday, June 12, 2014.

Summary: Respondent's pattern of excessive absenteeism over the 2012-2013 and 2013-2014 school years resulted in just cause for the Board to place Respondent on leave for the remainder of the school year in lieu of termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4956TTS

JAMES DAILEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal admi nistrative hearing was

conducted before Administrative Law Judge Mary Li Creasy, by

video teleconference at sites in Tallahassee and Port St. Lucie,

Florida, on March 26 and 27, 2014.

APPEARANCES

For Petitioner: David Miklas, Esquire

Rich eson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to place

Respondent, a classroom teacher, on administrative leave without

pay from November 20, 2013 , through the remainder of the 2013 -

2014 school year due to Respondent Ó s excessive absenteeism, as

alleged in the December 19 , 2013 , Statement of Charges.

PRELIMINARY STATEMENT

By letter dated October 24, 2013, Genelle Zoratti Yost

(Yost) , s uperintendent of St. Lucie County public schools

(Petitioner) p laced James Dailey (Respondent) on temporary duty

assignment at home and informed him that she planned to recommend

his placement on Ð administrative leave without pay, Ñ effective

November 20, 2013. At its regular meeting on November 19, 2013,

the St. Luci e County School Board ( District or Board) voted to

accept the recommendation and placed Respondent on administrative

leave without pay for the remainder of the 2013 - 2014 school year,

effective November 20, 2013.

Respondent requested a formal admini strative hearing to

contest P etitioner Ó s actions. Despite insisting that this was

not a disciplinary matter, the D i strict issued a Sta tement of

Charges on December 19 , 2013, alleging that Respondent was

excessively absent from his position as a classroom teacher at

Port St. Lucie High S chool (PSLHS) and its actions were thereby

warranted. Respondent requested an admin istrative hearing. On

December 20 , 201 3 , Petitioner forwarded the request to the

Division of Administrative Hearings, which scheduled and

conducted the hearing.

On March 17, 2014, the parties filed a Joint Pre - hearing

Stipulation, including a statement of agreed facts that have been

adopted and incorporated herein as necessary.

At the final hearing, which took place on March 26 and 27 ,

2014, Petitione r called the following witnesses: PSLHS Principal

Bridgette Hargadine (Hargadine) and Assistant Superintendent for

Human Resources Susan Ranew (Ranew). Petitioner Ó s Exhibits 1

through 7a and 7c, 8 through 10, 13 , 14, 18, and 19 were admitted

in evidence. Respondent testified on his own behalf and called

the following witnesses: Yost and Marvin Sanders (Sanders),

Executive Director of Growth Management, Intergovernmental

Relations, Maintenance and Facilities . Respondent Ó s Exhibits 1

through 3, 5 through 25, 27 through 30, 32, 34, and 39 were

admitted.

The three - volume final hearing T ranscript was filed on

April 28, 2014. Respondent filed an U nopposed M otion for

Extension of T ime to file P roposed R ecommended O rder on that same

day. The motion was grante d on April 29, 2014. Both parties

timely filed proposed recommended orders which were considered in

the preparation of this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes

and Florida Administrative Code refer to the 2013 vers ion.

FINDING S OF FACT

1. Petitioner is a duly - constituted s chool b oard charged

with the duty of operating, controlling, and supervising all free

public schools within St. Lucie County , Florida, pursuant to

article IX, section 4(b) , Florida Constitution, and

section 1001.32, Florida Statutes.

2. At all times material hereto, R espondent was employed as

a teacher at PS LHS, a public school in St. Lucie County, Florida.

Respondent has been employed by the District for approximately

20 years.

3. Respondent h as a professional services contract pursuant

to section 1012.33. As a classroom teacher, R espondent is

charged with instructing high school students. Regular

attendance is considered by Petitioner to be an essential

function of the position of classroom teacher.

4. P ursuant to Board P olicy 6.549(1)(a), Respondent was

entitled to four days of sick leave as of the first day of

employment of each school year and thereafter earned one sick day

for each month of employment, for a maximum of ten sick days per

school year.

2012 - 2013 School Year

5 . During the 2012 - 2013 fiscal year, Respondent was

assigned to teach intensive math classes to students who struggle

to pass required state exams required for graduation.

6 . Hargadine, in coordination with Petitioner Ó s H uman

R esources D epartment, directed Assistant P rincipal April Rogers

(Rogers) to meet with R espondent on October 2, 2012, to address

R espondent Ó s pattern of absenteeism and the impact it was having

on students , and to explore the possibility of accommoda tions if

his frequent absences were caused by a health condition.

7 . At least one student asked to be removed from

Respondent Ó s class due to the frequency of Respondent Ó s absences.

8. As directed, on October 2, 2012, Rogers met with

Respondent and discus sed Petitioner Ó s concerns that Respondent Ó s

absences resulted in his students missing math instruction for

39 percent of their scheduled classes. Respondent was notified

that he had already exhausted h is available sick leave and he had

not properly filled out leave requests in a timely manner.

During this meeting, Respondent acknowledged that his absences

had a negative impact on students. This conference was

memorialized in a Summary of Conference dated October 2, 2012 ,

issued to Respondent from Rogers.

9. After the October 2, 2012, meeting, Respondent was also

absent on October 16 through 19, 2012.

10. On October 23, 2012, Rogers issued a Letter of Concern

to R espondent detailing his continued excessive absenteeism and

failure to timely request leave. The letter advised that

Respondent Ó s absenteeism amounted to 17 of 42 instructional days

and equated to 40 percent of lost instructional time for

Respondent Ó s students. This letter reiterated that Respondent Ó s

absences directly affect his students Ó educ ational success.

11. In addition to Respondent disrupting the continuity of

the classroom by failing to attend work, Respondent also failed

to supply adequate lesson plans and/or provide for stude nt

instruction while he took un approved leave. On several

occasions, Hargadine or her assistant principal had to create or

add to the lesson plans to enable a substitute to teach

Respondent Ó s classes.

12. Respondent Ó s absenteeism and lack of proper notice of

his absences resulted in his students being Ð taught Ñ b y

individuals who did not have a college degree in mathematics, or

even education, as some of these individuals were substitutes

(who only need a high school diploma), para - educators, and even

clerical workers. When staff members were re quired to provide

coverage for R espondent Ó s classes, it negatively impacted both

students and co - workers. For example , if a clerical worker or

para - educator was called to provide coverage for Respondent Ó s

classes, their own work would have to wait and they would not be

a bl e to complete their own specific job duties in order to ensure

coverage for Respondent Ó s students.

13 . After receiving the October 23, 2012, Letter of

C oncern, R espondent was also absent on October 31, November 1,

November 2, November 5 , and November 6, 2 012.

14 . As the a ssistant s uperintendent for Human Resources,

Ranew assists site - based administrators ( p rincipals and a ssistant

p rincipals) concerning staff discipline and adherence to policies

and procedures. Rogers requested Ranew Ó s assistance in

addre ssing Respondent Ó s absenteeism. On November 6, 2012, Ranew

issued a letter to Respondent regarding his excessive

absenteeism.

15 . This letter from Ranew reminded Respondent of the

importance of him submitting leave requests because his school

would not k now of his absence even if he properly requested a

substitute teacher using the AESOP (computerized) system.

16 . By this letter, Ranew also attempted to initiate the

Ð interactive process Ñ required by the Americans with Disabilities

Act (ADA). Although Re spondent had not identified himself as a

Ð qualified individual with a disability Ñ within the meaning of

the ADA, his excessive absenteeism suggested that he might need

an accommodation if his absenteeism was being caused by a medical

condition.

17 . The No vember 6 letter stated, Ð to the extent that your

absenteeism is being caused by medical condition, the District

may be agreeable to allowing you to take a leave [of absence] to

accommodate such a condition, if that would help. In the event

you realize tha t you are unable to regularly be at work due to a

medical condition, you should consider promptly requesting an

extended leave of absence (e.g. , for this semester or the school

year), and the District would be willing to consider such a

request. Ñ

18 . To d etermine R espondent Ó s potential eligibility for an

accommodation pursuant to the ADA, Ranew specifically requested

that Respondent Ó s doctor provide documentation clarifying :

Ð a) any specific condition/impairment that Respondent has, as

well as the cause; b) any restrictions/limitations on

Respondent Ó s work duties as a teacher; c) the expected duration

for each limitation or whether it is permanent; d) whether the

condition is controll able with the use of medication , and if yes :

1. what is the mitigating effect of this medication ; and

2. whether Respondent could fully perform his job duties, with

the aid of such medication. Ñ

19 . In response to Ranew Ó s letter, Respondent provided the

District with a doctor Ó s note from Dr. Kenneth Palestrant dated

November 7, 2012, stating that the majority of Respondent Ó s

visits to the clinics occur between the months of January through

May and September through December (effectively during the

calendar school year) and speculated that Respondent Ð may Ñ be

exposed to allerge ns in the school building or in his classroom.

20 . Dr. Palestrant explained that Respondent was being

treated with antibiotics and allergy medications and recommended

Respondent receive an allergy test from an allergist to identify

the specific allergens. Dr. Palestrant found that other than the

potential environmental exposure to an allergen, he found Ð no

reason [Respondent] cannot perform his full duties as a school

teacher as he has no impairment and the medications he has been

given have no mitigatin g effect upon his performance. Ñ

21 . After receiving Dr. Palestrant Ó s November 7, 2012 ,

note, and after receiving an e - mail from Respondent in which he

wondered if something in his classroom might be causing his

medical condition, Ranew asked Sanders to in spect Respondent Ó s

classroom. Sanders Ó job duties would require him to facilitate

any remedial action with regard to Respondent Ó s classroom, should

one be needed. In response to this request, Respondent Ó s

classroom was inspected but nothing of concern wa s discovered

within the room. Nonetheless, the classroom was sanitized using

two methods: with an ozone machine to kill bacteria and other

germs, including mold, and also with a fogger using disinfectant

that kills microorganisms, bacteria, and mold , as a precaution.

22 . On November 15, 2012, Respondent sent an e - mail to

Ranew, informing her that he wa s Ð being evaluated by an

Allergist, and will be setting up a colonoscopy per doctor Ó s

orders Tuesday, [November 20, 2012]. Ñ

23 . On November 15, 2012, Rane w sent an e - mail to

Respondent requesting that he provide her with an allergist

report when complete.

24 . On November 16, 2012, Respondent sent an e - mail to

Ranew in which he discussed beginning to take a new allergy

medicine, and promised to fax the alle rgist report to her .

25 . Ranew issued a letter to Respondent dated December 21,

2012 , advising him that she had yet to receive an allergist

report, again requesting such a report or medical c larification.

Ranew Ó s December 21, 2012 , letter also reminded Re spondent that

regular, consistent, punctual attendance, and working a full

assigned workday are essential functions of his position as a

classroom teacher.

26 . Although Respondent did not request leave under the

Family and Medical Leave Act (FMLA), when h e failed to provide

the requested allergist report five weeks after Ranew requested

it, and Respondent continued his pattern of excessive

absenteeism , the District advised that it intended to designate

his absences as FMLA - qualifying.

2 7 . Ranew Ó s December 21, 2012 , letter to Respondent again

requested clarification from Respondent Ó s doctor/allergist, with

a focus on Ð whether there is a modification or adjustment to the

work environment that will enable you to perform the

essential functions of [your] posi tion (classroom teacher ). Ñ

28 . Respondent was told, Ð [i]n the event that you believe

that something such as trees, grass, or something else near your

current classroom/school may be causing your condition, which has

resulted in many absences, the [School ] District is willing to

consider a request to transfer you to another location. Ñ

29 . Notably, Respondent did not provide any information

from a health care provider which suggested any work modification

would enable him to perform the essential function s of his job ,

nor did he take advantage of Petitioner Ó s offer of a transfer to

another location.

30 . In response , Respondent emailed Ranew on December 29,

2012 , advising that his allergy test would be conducted on

January 3, 2013 , and he would provide the results to her as soon

as he received them. Respondent also expressed interest in

obtaining information regarding short - term disability leave.

31 . On January 8, 2013, Ranew advised Respondent that if he

desired to take leave in connection with his privat e insurance

company Ó s short - term disability policy , she requested that he

advise her Ð as soon as possible as the [School] District may be

able to accommodate you with an extended leave. Ñ

32 . There is no evidence that Respondent pursued Ranew Ó s

offer for a n accommodation in connection with short - term

disability.

33 . By le tter dated January 8, 2013, Ranew advised

Respondent that she still had not received a copy of his

allergist Ó s report, and she Ð had been trying to accommodate

[Respondent], but it is diffi cult to do when the information [the

School District] need[s] is still not provided. Ñ Ranew again

reminded Respondent that his students needed continuity in the

classroom and , if he was unable to provide that, other

arrangements would need to be made for the upcoming semester.

34 . Respondent provided Ranew with an allergist report

dated January 18, 2013. The report explained that Respondent

tested positive for multiple allergens, and recommended

treatments , including immunotherapy (allergy injections),

p rescribed medications (nasal sprays), and surgery (balloon

sinuplasty).

35 . Respondent Ó s allergist identified Respondent being

allergic to 42 antigens, including cats, dogs, various grasses,

weeds, trees, dust mites and cockroaches , and mold.

36 . Respond ent Ó s allergist recommended Respondent undergo

surgery , and Petitioner permitted Respondent to take FMLA leave

for such surgery. Respondent was also permitted to

intermittently use all remaining FMLA l eave available to him ,

which he exhausted and which ex pired on March 28, 2013, due to

the conclusion of his FMLA designated 12 - month period .

37 . In addition to utilizing all FMLA leave available, the

District also provided an additional 21 days of unpaid leave

during the remainder of the 2012 - 2013 school yea r to Respondent,

which was above and beyond his allotted sick leave, as well as

above and beyond the 60 days of FMLA leave to which he was

entitled.

38 . During the 2012 - 2013 school year, Respondent was absent

89 out of 191 possible work days, which accoun ts for an

absenteeism rate of 48 percent .

3 9 . During the 2012 - 2013 school year, Respondent only

worked 772.50 hours. Although Petitioner designated additional

unpaid days as FMLA, Respondent was not eligible for additional

FMLA leave beginning in March 2 013 through March 2014 because he

had not worked the requisite number of hours in the preceding 12 -

month period to be eligible for FMLA leave.

2013 - 2014 School Year

40 . On August 9, 2013, prior to the beginning of the 2013 -

2014 school year, Ranew sent a l etter to Respondent regarding his

excessive absenteeism; explaining t hat his regular attendance was

expected during the upcoming 2013 - 2014 school year; that his

students need continuity in the classroom and if he was unable to

provide that continuity , that other arrangements needed to be

made for the next school year; that he should not expect to be

automatically extended any additional unpaid leave d uring the

2013 - 2014 school year; and he would only receive the sick leave

to which he was already entitled.

41 . Ranew advised Respondent that when he returned for work

at the beginning of the 2013 - 2014 school year he would have four

days of permitted sick leave advanced to him, and would accrue

one additional day at the end of each month from August through

Feb ruary.

42 . In this letter, Ranew also told Respondent that it was

her understanding that the sinus surgery that he underwent was

part of his treatment plan to resolve the sinus and allergy

issues which seriously impacted his attendance (during the 2012 -

20 13 school year) and that his chronic sinusitis wa s expected to

improve post operatively. Responden t did not challenge or

correct Ranew Ó s understanding on these issues and did not

indicate that additional absences were anticipated.

43 . Ranew had serious c oncerns about the lack of consistent

instruction for Respondent Ó s students due to Respondent Ó s

absenteeism. Only 11 of Respondent Ó s 94 students passed the

standardized math examination required for graduation in the

2012 - 2013 school year , which is approxi mately a 12 percent pass

rate. This was significantly lower than the 50 percent pass rate

of Respondent Ó s colleagues who also taught the same type of

Ð struggling Ñ math students.

44 . In order to minimize the potential disruption to

students caused by exce ssive absenteeism, Respondent was assigned

to teach accounting classes for the new school year which are not

courses required for graduation. Respondent was also assigned to

a different classroom , in a different building , for the 2013 - 2014

school year.

45 . As of October 3, 2013, Respondent was absent on

August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26 , and

October 2, 2013, well in excess of the sick leave that he was

permitted to take in accordance with Board policy.

46 . By letter dated October 3, 2013 , Ms. Ranew wrote to

Respondent advising him that his pattern of absenteeism has a

direct negative impact on an orderly learning environment and

referring to her August 9 correspondence where in she directed

Respondent to advise the District if he ne eded leave above and

beyond the sick days that he was p ermitted to take.

47 . Ranew advised Respondent that he had not provided the

requested medical documentation that would support that he had a

medical condition necessitating leave from his job, but tha t the

District was continuing its attempt to engage Respondent in an

interactive process concerning his medical condition, and again

requested documentation from Respondent Ó s doctor addressing his

recent absences and his current condition.

48 . In response to Ranew Ó s October 3, 2013 , letter,

Respondent submitted a doctor Ó s note dated October 9, 2013 , which

advised that Respondent Ó s condition Ð can be treated with nasal

sprays and intermittent antibiotics Ñ but raised the potential for

future treatment to incl ude additional surgical procedure(s) .

Importantly, the doctor Ó s note clearly explained that Respondent

Ð can perform as a teacher with [his medical conditions], though

he may notice hearing loss changes whenever he has middle ear

fluid. Ñ

49 . The October 9 , 2013 , doctor Ó s note Respondent submitted

accounted for four of his absences in August and two of his

absences in September, but failed to address the other eight

absences which he incurred during September and October 2013.

50 . Even after receiving Ms. Ranew Ó s October 3, 2013 ,

letter, Respondent was absent on October 9, 21, and 22, 2013.

As of October 24, 2013, Respondent was absent 14 days out of

46 instructional days for the 2013 - 2014 school year.

51 . Ranew worked with Yost in the decision to recommen d to

the Board that Respondent be placed on administrative leave

without pay . T he basis for that recommendation was Respondent Ó s

excessive absenteeism and failure to follow p rotocol for sick

leave.

52 . By letter dated October 24, 2013 , Yost advised

Respo ndent that she was recommending his placement on a leave of

absence specifically because of his continual excessive

absenteeism, which had been a constant disruption to the

classroom and directly impacted an orderly , continuou s learning

environment for his students.

53 . Yost bel i e ved that recommending Respondent be placed on

leave without pay was not disciplinary in nature, but rather done

to provide him an accommodation to resolve any issues which had

caused his excessive absenteeism.

5 4 . On October 24, 2013, Yost placed Respondent on Ð home

assign ment Ñ with pay through November 19, 2013, at which time the

Board voted to accept Yost Ó s recommendation to place Respondent

on leave without pay for the remainder of the school year.

The Charges Against Responden t

55 . In its Statement of Charges in Support of the Placement

on Administrative Leave Without Pay filed on December 19 , 2013,

the District advanced four theories for Respondent Ó s leave

without pay : incompetency , gross insubordination , willful

neglect of dut y , and misconduct in office .

56 . Ð Incompetency Ñ is defined in Florida Admini strative

Code Rule 6A - 5.056(3) as, Ð the inability, failure or lack of

fitness to discharge the required duty as a result of

inefficiency or incapacity. Ñ Ð Gross insubordination Ñ is defined

in rule 6A - 5.056(4) as Ð the intentional refusal to obey a direct

order, reasonable in nature, and given by and with proper

authority; misfeasance, or malfeasance as to involve failure in

the performance of the required duties. Ñ See Fla. Admin . Code

R . 6A - 5.056(2)(c). Ð Willful neglect of duty Ñ is defined in

rule 6A - 5.056(5) as the Ð intentional or reckless failure to carry

out required duties. Ñ

57 . Ð Misconduct in Office, Ñ accordi ng to r ule 6A - 5.056(2),

is satisfied by a showing of one or more of the following: a

violation of the adopted school board rules , a violation of the

Code of Ethics of the Education Profession in Florida (as adopted

in Florida Administrative Code Rule 6B - 1.001 ) , or behavior that

disrupts the student Ó s learning environme nt.

58 . The Board Ó s Policy 6.301(3)(b) identifies a variety of

terminable offenses including:

(i) Insubordination

* * *

(x) Failure to follow a direct order in

normal performance of employee Ó s job

* * *

(xiii) Failure to notify su pervisor and

receive permission for one or more

consecutive workdays Ó absence

(xiv) Unsatisfactory work performance

(xv) Excessive absences or tardiness

(xvi) Neglect of duty

(xvii) Unauthorized absences

* * *

(xix) Violation of any rul e, policy,

regulation, or established procedure

* * *

(xxix) Any violation of the Code of Ethics

of the Education Profession, the Principles

of Professional Conduct for the Education

Profession, the Standards of Competent and

Professional Perf ormance, or the Code of

Ethics for Public Officers and Employees

* * *

(xxxiv) Failure to correct performance

deficiencies

59 . The finding that Respondent violated one and/o r

multiple Board p olicies relating to his excessive absenteeism

necess arily shows that he is guilty of Ð misconduct

in office. Ñ

Respondent Ó s Defenses

A. Reason for Absences

60 . Respondent does not disp ute his record of absenteeism

or the District Ó s record of communicating its concern regarding

his chronic absenteeism and i ts effect on his students. Rather,

Respondent asserts that his absenteeism was related to the

environmental conditions at PSLHS. Respondent believes that he

suffered from chronic sinus problems, headaches, and repeated

scratchy throats due to possible ex posure to mold or other

allergens at the school which caused many of his absences.

61 . According to Respondent, PSLHS suffered storm damage in

2008 that resulted in mold growing around his classroom door.

After school authorities were notified by Respond ent of the mold

issue, the door and mold was removed. Respondent has not worked

in that classroom in more than three years.

62 . Respondent admitted that some of his absences during

the 2012 - 2013 and 2013 - 2014 school years were not related to

sinus proble ms. For example , R espondent missed work when he

stayed up late with a new puppy . Respondent also missed work to

get massage therapy on several occasions. Several of

Respondent Ó s absences were attributed to stomach issues.

63 . None of Respondent Ó s docto rs identifie d any need for

Respondent to be extensively absent from work due to any medical

condition , other than his recommend ed sinus surgery which

occurred in early 2013 and was covered by FMLA .

64 . No evidence was introduced at the hearing that any of

Respondent Ó s doctors actually determined that anything either at

PSLHS or within Respondent Ó s classroom caused Respondent Ó s

excessive absenteeism , or that Respondent could not work at PSLHS

due any medical reason. To the contrary , during the 2012 - 2013

sc hool year, Respondent provided 30 doctor Ó s notes returning him

to work with no restrictions. During the 2013 - 2014 school year,

Respondent provided four doctor Ó s notes returning him to work

with no restrictions.

6 5 . Respondent admitted he was allergic to various grasses

and trees common to Florida, and even admitted he was allergic to

the grass in his own yard. When Respondent was asked if anything

changed in his home environment between the 2011 - 2012 and 2012 -

2013 school years where his absences skyrocke ted, he testified

that he had just gotten a puppy.

6 6 . During the relevant time period, approximately

70 percent of Respondent Ó s absences occurred on days when the

proceeding day was not a school day, which suggests it was

unlikely that Respondent Ó s absen ces were due to the environment

at his work site. Although Respondent claimed his school

environment exacerbated his allergies, his absences at issue are

full - day absences where he called in sick for the entire day

rather than leaving work during the work day. At no time did

Respondent or his healthcare providers suggest that PSLH S or

Respondent Ó s classroom should have air quality testing.

6 7 . Respondent admitted , on the days he was absent, he felt

worse when he woke up at home than when he was at work in his

classroom and when he was too sick to come to work he would wake

up Ð hacking. Ñ

6 8 . Further, while on administrative leave without pay,

Respondent showed up to PSLHS in January 2014 to oversee a

wrestling tournament that he previously helped organize. It is

illogical that Respondent would voluntarily return to the very

place which he now suggests made him so sick that he needed to

continuously take days off without available leave or sick time .

6 9 . No credible evidence was presented to suggest that

R espondent Ó s chronic absenteeism was as a result of the

District Ó s failure Ð to provide a suitable working environment, Ñ

as alleged by Respondent. 1/

B. Use of Administrative Leave Rather Than Discipline

70 . T he Board asserts that Respondent Ó s chronic patte rn of

absences during the 2012 - 2013 school year and the first few

months of the 2013 - 2014 school year resulted in Ð just cause Ñ for

termination. However , in lieu of termination, Ranew proposed,

and the Board accepted, her recommendation for administrative

leave without pay. Ranew credibly testified that she believed

this would give Respondent the opportunity to take care of any

problems that were causing his absenteeism and allow him to

successfully return to the classroom in the 2014 - 2015 school

year.

71 . There is no provision under any statute, rule , or

policy specifically providing the B oard with the authority to

place an employee on administrative leave without pay instead of

a suspension without pay or termination. 2/

72 . Because of this, R espondent a rgues that he was deprived

of due process by the B oard and that the B oard Ó s action

constitutes the improper use of an u npromulgated rule.

73 . A Ð rule Ñ is defined in the Administrative Procedure Act

(APA) as an:

agency statement of general applicability

th at implements, interprets, or prescribes

law or policy or describes the procedure or

practice requirements of an agency and

includes any form which imposes any

requirement or solicits any information not

specifically required by statute or by an

existing r ule. The term also includes the

amendment or repeal of rule.

§ 120.52(16) , Fla. Stat.

74 . No evidence was presented regarding any alleged Board

Ð statement of general applicability Ñ regarding the use of

administrative leave without pay as a substitute fo r disciplinary

action.

75 . Further, it is clear from the record that Respondent

received all the process to which he was entitled - - notice and an

opportunity to be heard prior to the implementation of the leave

without pay. Respondent was provided a lette r by hand delivery

on October 24, 2013 , from Yost in which he was advised that he

was being placed on temporary duty assignment until the next

B oard meeting and that she intended to recommend he be placed on

administrative leave without pay through the rem ainder of the

school year due to his excessive absenteeism. He was notified

that he had exhausted all paid leave yet continue d to be absent .

76 . I t was also noted that Respondent Ó s physician indicated

he could perform as a teacher but may have a hearing loss when

middle ear fluid is present. Notably , his physician Ó s letter

accou nted for four of his absences in August and t w o of his

absences in September 2013, but did not address the other eight

absences which he incurred during September and October 2013 .

This letter advised R espondent that if he had any information to

provide regarding why this action should not be taken , he could

do so in a meeting or in writing.

77 . Accordingly, Respondent had notice and an opportunity

to be heard prior to the implem entation of the leave without pay.

Additionally, the S tatement of C harges issued on December 19 ,

2013 , and the formal administrative hearing before DO A H

constituted notice and an evidentiary hearing - Î the post adverse

employment action due process to which Respondent was entitled.

78 . The undersigned has no doubt about the sincerity of the

Board Ó s desire to see Respondent take time to address whatever

was resulting in his absences and return to work successfully.

However, to call Respondent Ó s Ð administrat ive leave without pay Ñ

a non - disciplinary action is an exercise in form over substance.

While on leave, Respondent was not receiving his normal wages for

teaching. He was not allowed to return to the school to teach

for the balance of the school year. 3/

79 . Understandably, Respondent does not perceive his leave

as beneficent. For all intents and purposes it is, in fact, a

Ð suspension Ñ without pay which, pursuant to the B oard Ó s policies,

applicable rules , and statutes , can only be imposed for Ð just

cause . Ñ 4/

Determinations of Ultimate Fact

80 . The greater weight of the evidence establishes that

Respondent engaged in a pattern of excessive and chronic

unexcused absenteeism during the 2012 - 2013 and 2013 - 2014 school

years, despite the District Ó s repeated re minders regarding the

disruption caused by Respondent Ó s absences and its multiple

attempts to accommodate any medical condition that might have

been causing the absences. 5/ This pattern resulted in a variety

of terminable offenses as described in Board Po licy 6.301(3)(b).

81 . It is determined, as a matter of ultimate fact, that

R espondent is guilty of incompetency , as defined by r ule 6A -

5.056(3)(a)5 . by virtue of his excessive absenteeism - - a pattern

which was not resolved after FMLA leave, 21 additional d ays of

leave without pay during the 2012 - 2013 school year, and which

continued into the new school year of 2013 - 2014 .

82 . It is determined , as a matter of ultimate fact, that

R espondent is guilty of gross insubordination by virtue of his

failure to perfor m his required duties, excessive absenteeism

despite having no paid leave available, and failing to return to

work on a consistent and regular basis after repeated and

extensive counseling by the D istrict regarding the consequences

of his actions .

83 . It is determined , as a matter of ultimate fact, that

R espondent engaged in willful neglect of duty by failing to

regularly report to work or to properly request time off from

work or make arrangements to have lesson plans available for

substitute teachers.

84 . It is determined , as a matter of ultimate fact, that

Respondent engaged in misconduct in office by virtue of his

violation of School Board p olicies and disrupting his students Ó

learning environment by his chronic absenteeism.

CONCLUSIONS OF LAW

85 . DO AH has jurisdiction over the parties to and the

subject matter of these proceedings pursuant to sections 120.569

and 120.57(1), Florida Statutes.

86 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2). Petitioner has t he authority

to suspend and terminate instructional employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

87 . To do so, Petitioner must prove, by a preponderance of

the evidence, that Respondent committed the alleged violations,

and t hat such violations constitute Ð just cause Ñ for dismissal.

§ 1012.33(1)(a) & (6), Fla. Stat.; McNeil v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

88 . Whether Respo ndent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DC A 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

89 . The findings of ultimate fact in this case obviate the

need for legal analysis. It is axiomatic that an essential

function of the job of classroom teacher is regular attendance.

In this case, the District did everything it could to assist

Respondent with his apparent ongoing and erratic need for time

off and to work towards returning him successfully to the

classroom. It is surprising that Respondent Ó s employment was not

termina ted at the end of the 2012 - 2013 school year. It is

asinine to expect the District to prevent Respondent Ó s exposure

to allergens that he is constantly surrounded by outside of the

school environment , and to which he intentionally expose s

himself.

90 . Sect ions 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be terminated during the

term of their employment contract only for Ð just cause. Ñ

§ 1012.33(1)(a) & (6), Fla. Stat.

91 . Ð Just cause Ñ is defined in section 1012.33(1)(a) to

i nclude Ð incompetency, Ñ Ð gross insubordination, Ñ Ð willful neglect

of duty, Ñ and Ð misconduct in office. Ñ

92 . By demonstrating Respondent Ó s pattern of excessive

absenteeism and its consequences for Respondent Ó s students and

co - workers, Petitioner proved, by a preponderance of the

evidence, that just cause exist ed to place Respondent on leave

without pay f rom November 20, 2013 , through the end of the 2013 -

2014 school year in lieu of termination .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of

Law, it is RECOMMENDED that Petitioner, St. Lucie County School

Board, enter a final order upholding Respondent Ó s suspension

without pay from November 20, 2013, through the end of the 2013 -

2014 school year; denying back pay for the full period of his

suspension; and reinstating Respondent Ó s employment as a teacher

at the start of the 2014 - 2015 school year.

DONE AND ENTERED this 12th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Adminis trative 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 12th day of June , 2014 .

ENDNOTE S

1/ Respondent introduced evidence of an i ndoor environmental

inspection report prepared by Eco Advisors, LLC, based upon a

November 2013 inspection of the boys Ó locker room, coaches Ó

offices , and computer lab of P SLHS which was performed at the

request of a coach. Respondent suggests that due to this report,

the District was on notice of indoor air quality concerns and

therefore should have somehow taken steps to Ð protect Ñ him from

possible allergens such as mold. This argument is without merit.

Respondent testified that he did not work in the gym area during

the 2013 - 2014 school year and did not work in the computer lab

during his tenure at the school. Further, testing performed in

November 2013 is not necessar ily reflective of any conditions in

the building to which Respondent may have been exposed during the

2012 - 2013 school year or the portion of the 2013 - 2014 school year

until October 24, 2013. If anything, this report shows that the

District was concerned about, and responsive to, specific

concerns regarding the environmental conditions of the school.

2/ T he B oard Ó s witnesses also testified that they were unaware of

anything in the collective - bargaining agreement (CBA) that

authorizes the use of an admini strative leave without pay in lieu

of termination. However, the CBA , which was admitted in

evidence, contains a broad Ð management rights Ñ provision which

provides, Ð All management rights and management functions not

expressly delegated in this agreement a re reserved to the Board. Ñ

It is unreasonable to conclude that the Board has the ultimate

authority to terminate the teacher Ó s contract for excessive

absenteeism but nevertheless lacks the authority to employ an

intermediate , and remedial , level of discip line ( such as

administrative leave without pay which is tantamount to a

suspension ) in order to protect the career of a long - tenured

teacher . The undersigned interprets the management rights

provision to include the implied authority to take lesser

discip linary action in lieu of termination.

3/ Although there was conflicting testimony regarding whether

Respondent continued to receive health insurance benefits from

the Board during his leave, it was clear that the Board intended

that he would not be eligi ble for benefits while on leave.

4/ While the Americans with Disabilities Act (ADA) provides as a

possible Ð reasonable accommodation Ñ an extended leave without

pay, Respondent Ó s leave cannot be construed as such because he

neither sought any accommodatio n nor did he provide the District

with any medical documentation to demonstrate that he was a

Ð qualified individual with a disability Ñ within the meaning of

the ADA.

5/ This excludes the 60 days of FMLA leave that were granted for

Respondent Ó s surgery re covery in early 2013.

COPIES FURNISHED:

David Miklas, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson

510 Vonderburg Drive , Suite 309

Brandon, Florida 33 511

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Genelle Zoratti Yost, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Flori da 34947

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.