14-004573 Seminole County School Board vs. Danny Jenkins Status: Closed Recommended Order on Monday, April 13, 2015.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 4573

DANNY JENKINS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II , of the

Division of Administrative Hearings heard this case on March 3,

2015, in Sanford, Florida.

APPEARANCES

For Petitioner: Mark Knowles Logan, Esquire

Sniffen and Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301 - 1509

For Respondent: Danny Jenkins

2630 South Elm Avenue

Sanford, Florida 32773 - 5131

STATEMENT OF THE ISSUE

Does Petitioner, Seminole County School Board (Board) , have

just cause to terminate the employment of Respondent, Danny

Jenkins, for being absen t without leave and for failing to follow

proper procedures for reporting absences?

PRELIMINARY STATEMENT

On September 9, 2014, the Board accepted and approved a

recommendation to suspend Mr. Jenkins, without pay, pending

disposition of Superintendent Walt Griffin ' s recommendation to

terminate Mr. Jenkins. The Board gave Mr. Jenkins written notice

of the recommendation that he be terminated. He timely appealed

the termination request pursuant to section 1012.40(1)(c),

Florida Statutes (2014). 1/ By Petiti on dated October 1, 2014, the

superintendent sought termination of Mr. Jenkins ' employment.

The Board referred the matter to the Division of Administrative

Hearings (DOAH) for conduct of a hearing.

The undersigned set the cause to be heard on December 4 ,

2014. The Board moved to continue the hearing in order to

conduct discovery. The motion was granted, and the hearing was

rescheduled for March 3, 2015. On February 27, 2015, after

pre - hearing matters and submission of the parties ' witness and

exhibit lists, new counsel appeared on the Board ' s behalf.

The hearing was conducted as scheduled. The Board presented

testimony of Boyd Karns, Ken Lewis, Stan McKenzie, and Julie

Murphy. Board Exhibits 1 through 4, 6 through 12, 29, and 31

were admitted into ev idence. Mr. Jenkins testified , call ed no

witnesses other than himself, and offered no exhibits.

The Board ordered a Transcript which was filed March 9,

2015. The Board timely filed a proposed recommended order.

Mr. Jenkins did not file a proposed recomm ended order.

FINDING S OF FACT

1. The Board operates the public schools in Seminole

County, Florida. It is responsible for hiring, terminating, and

overseeing all employees of the school district.

2. The Board has employed Mr. Jenkins as a bus driver in

the transportation services division of the school district since

2006. Their employment relationship is subject to the collective

bargaining provisions between the bus drivers ' union, Seminole

County School Bus Drivers ' Association, Inc., and the Board, as

reflected in the Collective Bargaining Agreement (Agreement) ,

dated July 1, 2013 , through June 30, 2016, and the Board ' s

Transportation Services School Bus Operations Handbook

(Handbook) , dated July 2014.

3. Mr. Jenkins had regular employment status as established

by Article IX, Section 3 of the Agreement.

4. Article XXII, Section 14 of the Agreement requires each

bus driver to call in to report an absence in advance of the

driver ' s regular starting time. The " Absentee Procedures " on

page 50 of the H andbook require the same procedures.

5. An employee is considered absent without leave (AWOL)

for each day the employee is absent from work without reporting

the absence using the process agreed to in the Agreement and

established by the Handbook.

6. E ach day that an employee is AWOL is a separate offense

for disciplinary purposes.

7. The Agreement provides for a " progressive step process "

of discipline for AWOL employees. The first offense is a

reprimand with a one - day suspension. The second is a f ive - day

suspension. The third is a recommendation for termination.

8. The Handbook provisions for AWOL employees are similar

to those of the Agreement. Employees who fail to notify dispatch

within an hour past their report time are considered AWOL. T he

first AWOL incident results in a one - day suspension without pay.

The second offense causes a five - day suspension. The third

offense is cause for termination.

9. Regular employment class employees may be suspended

without pay or discharged for reason s including, but not limited

to: violation of B oard policy; violation of work rules;

insubordination; improper use of sick leave; failure to perform

assigned duties; and other infractions as set forth by the

superintendent. Just cause is required.

10. O n August 11, 2014, the first day of the 2014 - 2015

school year, Mr. Jenkins did not show up for work. He did notify

dispatch that he was not coming in. The Board took no

disciplinary action for Mr. Jenkins ' absence that day.

11. On August 12, 2014, Mr. J enkins did not report for work

and did not call dispatch to report his absence from work.

12. Ms. Murphy, assistant director of Transportation

Services, sent Mr. Jenkins a letter notifying him that due to

being AWOL on August 12, 2014, she recommended th at he be

suspended for one day pursuant to the Agreement.

13. On Wednesday , August 13, 2014, Mr. Jenkins did not

report for work. He did not call dispatch as the Handbook

required. But he did call the School Board ' s front desk. The

Board did not take disciplinary action for that absence.

14. On Thursday, August 14, 2014, Mr. Jenkins did not

report for work. He did not call dispatch or make any other form

of contact with the Board concerning his failure to report for

work on that day.

15. On Friday, August 15, 2014, Mr. Jenkins did not report

for work. H e did not call dispatch. At 12: 08 a.m. that day , he

sent a fax addressed to Ms. Murphy saying that he would not be

able to come into work. The fax also contained a narrative

disputing previous recom mendations for discipline, discussing

alleged poisoning from fumes on the bus, and giving reasons why

he had not taken a physical to obtain a current medical

certification as required.

16. On Monday, August 18, 2015, Mr. Jenkins did not report

for work. He did not call dispatch or otherwise contact the

Board about his failure to report for work.

17. Mr. McKenzie sent Mr. Jenkins a letter on August 18,

2014, stating that Mr. Jenkins must contact him by Thursday,

August 21 , 2014 , to discuss his employment status. Mr. McKenzie

also called Mr. Jenkins ' home and cell telephone number in order

to " help him as best as I can to get him to come to work. "

Mr. Jenkins did not respond.

18. On Tuesday, August 19, 2014, Mr. Jenkins did not report

to work. He did n ot call dispatch. He sent Ms. Murphy a fax at

9:09 p.m., on August 18, 2014, stating that he would not be able

to report for work on August 19, 2014. The fax also claimed the

school was not acknowledging his telephone calls.

19. Mr. McKenzie called Mr . Jenkins four times on

August 19, 2014, to discuss his absence from work and other

work - related issues.

20. Mr. Jenkins did not report to work on Wednesday,

August 20, 2015. He did not call dispatch or otherwise

communicate with his supervisors about h is failure to report for

work.

21. Mr. McKenzie called Mr. Jenkins four times on that day

to discuss his absence from work. Mr. McKenzie also e - mailed

Mr. Jenkins.

22. On Thursday, August 21, 2015, Mr. Jenkins did not

report to work. He did not call dispatch an hour before his

scheduled runs. He called Mr. McKenzie via telephone later that

afternoon after receiving Mr. McKenzie ' s August 18, 2014, letter.

Mr. McKenzie offered to meet with Mr. Jenkins the following day.

Mr. Jenkins said he would atte nd.

23. On Friday, August 22, 2014, Mr. Jenkins met with

Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves.

The parties discussed, among other things, the fact that

Mr. Jenkins was not in compliance with the physical, medical

card, training , and related commercial driver license

requirements necessary for him to operate a bus.

24. Mr. Lewis also confirmed each of Mr. Jenkins ' absences

and AWOL status for the dates in August where he did not report

for work and did not call dispatch.

25. Thi s is a party admission admissible under the hearsay

exception created by section 90.803(18)(a), Florida Statutes.

The vast majority of the Board ' s evidence was hearsay, not

subject to a hearsay exception. But Mr. Jenkins ' admission to

Mr. Lewis, coupl ed with the fact that Mr. Jenkins ' testimony at

the hearing basically did not dispute the charges, so much as

offer reasons why he could not come to work and recit ing many of

his concerns, including student verbal and physical abuse on the

bus, bullying of his children, and poisoning of some sort related

to his employment. To the extent that the testimony of

Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins '

testimony, the undersigned found Mr. Lewis and Mr. McKenzie more

credible.

26. The outcome of the meeting was that Mr. Jenkins was

expected to report for work on Monday, August 25, 2014.

27. Immediately after the meeting, Mr. Lewis met privately

with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could

either resign or come in the following M onday and do everything

he needed to do to retain his employment.

28. Mr. Jenkins did not report for work on August 25, 2014.

He did not contact dispatch or otherwise communicate with his

supervisors or the Board.

29. Mr. Lewis called Mr. Jenkins on Monday after he failed

to report for work and offered to pick him up and bring him to

work. Mr. Jenkins declined that offer.

30. After Mr. Jenkins did not report for work on August 25,

2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins

notifyi ng him of a second AWOL offense and Mr. Lewis ' s

recommendation that Mr. Jenkins be terminated from employment.

31. On Tuesday, August 26, 2014, Mr. Jenkins did not report

for work. He did not contact dispatch or otherwise communicate

with his supervisor s or the Board.

32. That same day, the superintendent sent Mr. Jenkins a

letter noting that Mr. Jenkins had been AWOL on August 14, 20,

21, 25 and 26, 2014. The letter also noted that Mr. Jenkins

failed to follow the required notice procedures for his ab sences

on August 15, 18, and 19, 2014.

33. The superintendent ' s letter notified Mr. Jenkins that

he was recommending that the Board suspend Mr. Jenkins without

pay at the September 9, 2014, Board meeting and that the

superintendent would recommend Mr. Je nkins ' termination at the

October 14, 2014, board meeting.

CONCLUSIONS OF LAW

34. DOAH has jurisdiction over the parties and subject

matter of the Petition pursuant to sections 1012.40(2)(c),

120.569, and 120.57, Florida Statutes (2014) , and the contract

between the Board and DOAH.

35. The superintendent of a school district has the

authority to make recommendations for dismissal of school

employees pursuant to section 1012.27(5). Sections 1012.40(2)(c)

and 1012.22(1)(f) grant the Board the authority to t erminate

and/or suspend educational support employees without pay and

benefits.

36. Article 9, Section 4 of the Agreement establishes " just

cause " as the standard for regular employee discipline.

37. The Board must prove that it has just cause to

terminat e Mr. Jenkins. Dileo v. Sch. Bd. of Dade Cnty. ,

569 So. 2d 883 (Fla. 3d DCA 1990). It must prove just cause by a

preponderance of the evidence. See McNeill v. Pinellas Cnty.

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

Sumter Cnty. S ch. Bd. , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

38. " Preponderance of evidence is evidence ' which as a

whole shows that the fact sought to be proved is more probable

than not. ' State v. Edwards , 536 So. 2d 288, 292 n.3 (Fla. 1st

DCA 1988). " Dufour v . State , 69 So. 3d 235, 252 (Fla. 2011).

See also Escambia Cnty. Elec. Light & Power Co. v. Sutherland ,

61 Fla. 167, 193 , 55 So. 83, 92 (1911).

39. The Board alleges that Mr. Jenkins was AWOL on five

days with each day being a separate violation of the A greement

and the Handbook requirements. The Board also alleges that

Mr. Jenkins failed to comply with the absence notification

requirements of the Agreement and the Handbook on three separate

dates. Each of those dates represented a separate violation of

the Agreement and the Handbook.

40. The Board proved, by a preponderance of the evidence,

that Mr. Jenkins was AWOL on August 14, 20, 21, 25 and 26. The

Board also proved by a preponderance of the evidence that

Mr. Jenkins failed to follow proper procedu res for reporting

absences on August 15, 18 and 19.

41. The Board has just cause for the suspension and

termination of Mr. Jenkins ' employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petition er, Seminole County School

Board , enter a final order finding that there is just cause to

terminate Respondent, Danny Jenkins ' , employment and dismissing

him from his position as a regular employee bus driver with the

Seminole County School District.

DONE AND ENTERED this 13th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 13th day of April , 2015 .

ENDNOTE

1/ All references to Florida Statutes are to the 2014 version .

C OPIES FURNISHED:

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

32 5 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Walt Griffin, Superintendent

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

(eServed)

Serita D. Beamon, Esquire

Seminole County School Board

Legal Ser vice Department

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

(eServed)

Danny Jenkins

2630 South Elm Avenue

Sanford, Florida 32773 - 5131

Paul A. Sanchez, Esquire

Seminole County School Board

Legal Services Department

400 East Lake Mary Boulev ard

Sanford, Florida 32773 - 7127

(eServed)

Mark Knowles Logan, Esquire

Sniffen and Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301 - 1509

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.