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IN THE MATTER OF:
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Docket No.: |
18-013174 |
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Edward Norwood, Petitioner
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Detroit Public Schools Community District, Respondent
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Case No.: |
18-4
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Agency: |
Education
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Case Type: |
ED Teacher Tenure
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Filing Type: |
Appeal |
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STATE OF
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
Issued and entered
this 24th day of September 2018
by: Eric J. Feldman
Administrative Law Judge
PRELIMINARY DECISION AND ORDER
OF
ADMINISTRATIVE LAW JUDGE
PROCEDURAL HISTORY
By letter dated June 4, 2018, Willie Wood, Principal of Brewer Academy; and Lauri D. Washington, Esq., Deputy Executive Director/Employee Relations of Detroit Public Schools Community District (District/Respondent), charged Edward Norwood (Petitioner/Appellant), a tenured teacher, with violating Work Rule 1 (all employees are expected to report for duty every working day, excessive tardiness or absenteeism will not be condoned), and unprofessional conduct. The charges are contained in 22 numbered paragraphs, covering three pages. The charges requested that Petitioner be discharged from his employment with Respondent. On June 12, 2018, the Detroit Public Schools Community District Board of Education (Board) met and considered the charges. The Board approved the charges and the request to terminate Petitioner’s employment. The charges as well as the Board action on the charges were sent to Petitioner on June 13, 2018.
On June 21, 2018, Petitioner, on his own behalf, filed a claim of appeal with the State Tenure Commission (Commission). However, on June 22, 2018, the Commission sent Petitioner a letter stating that his claim of appeal did not satisfy the applicable state laws and Commission rules when asserting a claim under the Teachers’ Tenure Act.
On June 25, 2018, the undersigned Administrative Law Judge (ALJ), Eric J. Feldman, sent both parties a Notice of Prehearing Conference by Telephone, which scheduled a prehearing conference for July 6, 2018.
On June 29, 2018, Attorney Phyllis Hurks-Hill, filed her Notice of Appearance on behalf of Respondent. On June 29, 2018, Attorney Hurks-Hill also filed Respondent’s Answer to Petitioner’s Appeal.
On July 2, 2018, Petitioner served a copy of his refiled claim of appeal and notice of claim of appeal to the Board. On July 3, 2018, Petitioner refiled his claim of appeal with the Commission.
On July 6, 2018, a prehearing conference was convened by the undersigned ALJ via teleconference. Petitioner appeared on his own behalf. Attorney Hurks-Hill appeared on behalf of Respondent. During the prehearing conference, both parties initially agreed to hearing dates, including the due dates for witness and exhibit lists. However, after the prehearing conference, on or about July 6 and 9, 2018, the Michigan Administrative Hearing System (MAHS) received contacts from Respondent’s Attorney for new hearing dates due to scheduling conflicts. As a result, it was determined that the hearing would be held from August 27 through 29, 2018, with witness and exhibit lists exchanged by August 13, 2018. On July 11, 2018, the undersigned ALJ issued an Order Following Prehearing Conference and Notice of Hearing. The Order also informed both parties that if potential witnesses will not voluntarily appear to give testimony, they will need to be subpoenaed. The Order informed both parties that they must determine which witnesses will require a subpoena as soon as possible so that a written request for the correct number of subpoenas can be given to the undersigned.
On August 10, 2018, Attorney Hurks-Hill filed Respondent’s Witness List and Respondent’s Exhibit List. On August 13, 2018, Petitioner filed his Witness List and Exhibit List.
On August 15, 2018, Attorney Hurks-Hill requested a final prehearing conference to discuss any pre-hearing issues and the scheduling of witness testimony. As a result, both parties agreed for a telephone final prehearing conference on August 24, 2018.
On August 24, 2018, a final prehearing conference was convened by the undersigned ALJ via teleconference. Petitioner appeared on his own behalf. Attorney Hurks-Hill appeared on behalf of Respondent. During the prehearing conference, pre-hearing issues and the scheduling of witness testimony were discussed. After the prehearing conference, on August 24, 2018, MAHS contacted both parties to determine if any of the parties needed a request for subpoena(s). Petitioner replied with a request for four subpoenas. On August 24, 2018, MAHS sent Petitioner a letter, which enclosed the four signed and sealed subpoenas which he requested and informed him that it was his responsibility to properly complete the subpoenas and to have the subpoenas served.
On August 27, 2018, the hearing convened as scheduled by the undersigned ALJ, located in Detroit, Michigan. Petitioner appeared on his own behalf. Attorney Hurks-Hill appeared on behalf of Respondent. The hearing was continued and concluded on August 28, 2018. The undersigned ALJ did not permit the filling of any post-hearing briefs.
ISSUE AND APPLICABLE LAW
Under the Teachers’ Tenure Act, a teacher may be discharged or demoted only for a reason that is not arbitrary or capricious. MCL 38.101. The United States Supreme Court has observed that the action of an administrative agency would normally be considered arbitrary and capricious if the agency relied on impermissible factors, failed to consider an important aspect of the problem, offered an explanation for its action that is counter to the evidence, or rendered a decision that is so implausible that it cannot be attributed to a difference in view or to agency expertise. Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Company, 463 US 29, 43; 103 S Ct 2856; 77 L Ed 2d 443 (1983).
In the case of Cona v Avondale School District (11-61) the Commission discussed the arbitrary and capricious standard as follows:
In Garza and Lecznar v Taylor School District (82-53), this Commission applied an “arbitrary and capricious” standard to review a management decision of a controlling board, citing the following Black’s Law Dictionary definition of action that is arbitrary:
[F]ixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; … without fair, solid, and substantial cause; … without cause based on the law … not governed by any fixed rules or standard. Black’s Law Dictionary p 134 (Revised 4th Ed.) [citations omitted]
A decision is arbitrary and capricious if it is based on whim or caprice and not on considered, principled reasoning. Chrisdiana v Department of Community Health, 278 Mich App 685, 692 (2008). Notwithstanding that the arbitrary or capricious standard of review is highly deferential, our review is not a mere formality and we are not required merely to rubber stamp the decision of a controlling board. Our responsibility in this case is to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence. If there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious. Williams v International Paper Company, 227 F3d 706, 712 (CA 6, 2000); Rochow v Life Insurance Company of North America, 482 F3d 860, 865 (CA 6, 2007); McDonald v Western-Southern Life Insurance Company, 347 F3d 161 (CA 6, 2003). If a controlling board overlooked important evidence or erred in appreciating the significance of evidence, its decision may be determined to be arbitrary or capricious. Pokratz, supra.
The Commission has held that it is their responsibility to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence.
When the Legislature amended the Teachers’ Tenure Act, it was well aware that in the event that the teacher contested the charges against him or her, the district would be required to prove the charges by a preponderance of the evidence. Luther v Board of Education of Alpena Public Schools, 62 Mich App 32 (1975). The Legislature did not change which party bears the burden of proof or the quantum of proof required to meet the threshold to discharge or demote a teacher. Craig v Larson, 432 Mich 346, 352 (1989). Therefore, the district bears the burden of proof to establish its case by a preponderance of the evidence.
A "preponderance" means that evidence which, when weighed with that opposed to it, has more convincing force resulting in a greater probability that the alleged misconduct occurred. See Thomas v Miller, 202 Mich 43 (1918); Giddings v Saginaw Township Community Schools Board of Education (92-1).
Based upon the foregoing, the issue in this case is whether the board established by a preponderance of the evidence that its discharge of petitioner was not arbitrary or capricious.
WITNESSES AND EXHIBITS
The following individuals testified at the hearing:
It should be noted that Petitioner sought to have a student testify during the hearing. On August 24, 2018, the undersigned ALJ signed a subpoena ordering the student to testify, which was requested by Petitioner on that same day. However, it was the responsibility of Petitioner to properly complete the subpoena and to have the subpoena served. Petitioner failed to complete and serve the subpoena to the student. Further, the student also did not voluntary appear and without a subpoena, student’s appearance could not be compelled. As a result, Petitioner was unable to have the student testify as a witness.
The following exhibits were offered on behalf of Petitioner and admitted into the record unless otherwise indicated:
The following exhibits were offered on behalf of Respondent and admitted into the record unless otherwise indicated:
1. Respondent Exhibit A is a Memo dated September 7, 2017, regarding written counseling.
2. Respondent Exhibit B is a Discipline Hearing Notice dated September 25, 2017, and a letter dated September 25, 2017, concerning an October 5, 2017, hearing.
3. Respondent Exhibit C was not offered.
4. Respondent Exhibit D is an Emergency Department Discharge Instructions from St. John Providence Hospital dated November 3, 2017.
5. Respondent Exhibit E is a Clinical Decision Unit Summary from St. John Providence Hospital dated October 10, 2017.
6. Respondent Exhibit F is a Memo for Notification of Approval for Family and Medical Leave Act (FMLA) dated October 13, 2017.
7. Respondent Exhibit G is a Memo regarding discipline decision process dated October 13, 2017.
8. Respondent Exhibit H was not offered.
9. Respondent Exhibit I are Emails dated November 6, 2017; and November 20, 2017, regarding excessive teacher absences.
10. Respondent Exhibit J is a Clinical Summary from St. John Providence Hospital dated November 9, 2017.
11. Respondent Exhibit K is a Family Medical Leave Act (FMLA)/Illness Leave of Absence Request Form dated November 13, 2017.
12. Respondent Exhibit L are Medical Records from Henry Ford Hospital dated November 13, 2017.
13. Respondent Exhibit M is a Henry Ford Hospital Medical Record dated November 13, 2017, regarding Return to Work.
14. Respondent Exhibit N is a Memo for Notification of Approval for FMLA dated November 17, 2017, for the period of November 3, 2017 to November 14, 2017.
15. Respondent Exhibit O is a Memo for Notification of Approval for FMLA dated November 21, 2017, for the period of November 3, 2017 to November 13, 2017.
16. Respondent Exhibit P is a Delivery of Important Correspondence dated December 20, 2017, concerning Disciplinary Decision and Suspension Letter, with attached letters dated December 15, 2017.
17. Respondent Exhibit Q are E-mails dated February 9, 2018; and April 11, 2018, regarding explanation for absence.
18. Respondent Exhibit R is a Memo dated February 26, 2018, regarding absences.
19. Respondent Exhibit S is a Memo dated March 21, 2018, regarding Notice of Unauthorized Absence.
20. Respondent Exhibit T was not offered.
21. Respondent Exhibit U is an Envelope and a Letter dated April 11, 2018, regarding Administrative Review/Interview.
22. Respondent Exhibit V is an E-mail dated April 18, 2018, regarding an Administrative Conference letter dated April 18, 2018.
23. Respondent Exhibit W are E-mails dated April 22, 2018; and April 23, 2018, regarding Petitioner’s absence reasons.
24. Respondent Exhibit X is an Envelope and Letter dated June 4, 2018, regarding Notice of Charges.
25. Respondent Exhibit Y is a Letter dated June 7, 2018, regarding Conference for the Record.
26. Respondent Exhibit Z is an Envelope and Letter dated June 13, 2018, regarding the Board’s approval to proceed upon charges of termination.
27. Respondent Exhibit AA is Petitioner’s Attendance Report for September 2017 through April 2018.
28. Respondent Exhibit BB is the Board Minutes, Regular Board Meeting dated June 12, 2018.
29. Respondent Exhibit CC is an E-mail dated October 18, 2017, regarding a letter from Petitioner.
30. Respondent Exhibit DD is an Absentee Report for September 5, 2017 to October 5, 2017.
31. Respondent Exhibit EE is an Order Adopting Employee Family and Medical Leave (FMLA) Act and Extended Leave of Absence Policy and Procedures dated November 11, 2014.
FINDINGS OF FACT
1. Petitioner has a Bachelor of Science in math with a minor in science. He has a master’s degree in math education. He is certified to teach 7th to 12th grades math and science. [Tr. Vol. I, pp. 15 and 19-20.]
2. Petitioner has over 25-years of teaching experience. Petitioner began working for the Detroit Public Schools Community District (District) as a math teacher in 1992. He obtained tenure with the District. From 1992 to 2017, he has been assigned to a number of different buildings during his tenure with the District. [Tr. Vol. I, pp. 16 and 24-25.]
3. Between September 10, 1998 to October 10, 2017, Petitioner received numerous memorandums, warnings, and reprimands regarding his attendance. In 2006, a formal discipline hearing was held regarding his absenteeism, which resulted in a one-day suspension. In May 2014, January 2015, May 2015, and June 2015, he was issued oral and/or written warnings related to his absenteeism. In October 2015, he was absent several consecutive days without notice of authorization and therefore, he was issued a Notice of Unauthorized Absence. [Resp. Exh. P, pp. 4-7; Resp. Exh. BB, pp. 19-21.]
4. From November 2015 to August 2017, Petitioner appears to have had no tardiness issues, other than being approved for FMLA from December 5, 2015 to January 3, 2016. [Resp. Exh. P, pp. 4-5; Resp. Exh. BB, pp. 19-21.]
5. On or about 2015-2016, Petitioner was assigned to teach math at Brewer Academy. He taught 7th grade for two hours a day, but also had multiple “preps” in order to teach 3rd and 4th grades, special education, and other classes. Over half of his schedule was teaching special education, 3rd and 4th grades, and 6th grade. [Tr. Vol. I, pp. 25-28.]
6. On August 27, 2017, Petitioner reported to Brewer Academy for the 2017/2018 school year, specifically, Brewer Elementary School. [Resp. Exh. BB, pp. 19-21; Tr. Vol. I, pp. 31-32.]
7. Mr. Willie Wood, Principal of Brewer Academy, testified that employees must report any absences online by 7 a.m. in a system known as “Aesop,” which is an absence management system that provides the opportunity for a substitute to be requested if/when an employee has to be absent. Petitioner believed he had to report the absence by 8 a.m. [Resp. Exh. I, p. 1; Tr. Vol. I, pp. 36-37and 109.]
8. The District’s Attendance Report[4] showed that Petitioner was a No Call/No Show for September 6, 2017, and he called in to report his absence after the designated call time for September 7, 2017. [Resp. Exh. P, p. 5; Resp. Exh. AA, p. 1.]
10. On September 11, 2017, Petitioner received an e-mail from Aesop, which provided his login information for the system. [Pet. Exh. 10, p. 1.]
11. For September 2017, the District’s Attendance Report showed Petitioner was also absent from school due to personal illness on the following dates: September 12-13; September 20-22; and September 25-29. Petitioner was absent for a total of 12-days for September 2017. [Resp. Exh. AA, p. 1.]
12. On September 25, 2017, Lauri D. Washington, Esq., Deputy Executive Director, Employee Relations, sent Petitioner a Discipline Hearing Notice and Memorandum informing him of a hearing scheduled for October 5, 2017, to address his absenteeism. The purpose of the hearing was to review his alleged violations of the following:
Work Rule #1 – All employees are expected to report for duty every working day. Excessive tardiness or absenteeism will not be condoned.
Work Rule #2 – Each employee must notify his/her administrator in charge of intended absence with the time limitations specified.
And
Unprofessional Conduct.
[Resp. Exh. B, pp. 1-2.] On September 26, 2017, Petitioner signed the Discipline Hearing Notice acknowledging receipt of the correspondence. [Resp. Exh. B, p. 1.]
13. On October 13, 2017, Ms. Washington sent Petitioner a letter informing him that he failed to attend the discipline hearing scheduled for October 5, 2017. The letter stated that the Hearing Officer was informed by Mr. Wood that Petitioner called in sick on the hearing date. The letter further stated that if Petitioner had any factors he wanted to be considered that may mitigate his attendance record, he could submit a written response by October 20, 2017. [Resp. Exh. G, p. 1.]
14. The District’s Order Adopting Employee Family and Medical Leave Act and Extended Leave of Absence Policy and Procedures, Order 2015-EMJM-08, effective November 11, 2014, signed by Jack Martin, Emergency Manager, states it is the responsibility of the employee to submit a request for FMLA. Under employee responsibilities and the process for taking FMLA leave, the Order states that “Note: Calling in “sick” will not be sufficient to trigger FMLA benefits or protections.” [Resp. Exh. EE, pp. 1-13; Tr. Vol. I, p. 117; Tr. Vol. II, p. 289.]
15. On October 13, 2017, the District sent Petitioner a letter regarding Notification of Approval for FMLA Leave. The letter stated that Petitioner requested FMLA on October 10, 2017, and was approved for FMLA during the period of October 8, 2017 to October 11, 2017. Petitioner’s FMLA was based on medical records showing that he was diagnosed with cervical spine problems and cervical epidural injection. The Physician Assistant, Certified (PAC) wrote a prescription indicating Petitioner was in the hospital from October 8, 2017 to October 10, 2017, and he may return to work on October 11, 2017. [Resp. Exh. E, pp. 1-16; Resp. Exh. F, p. 1.]
16. On October 18, 2017, Petitioner sent via e-mail to Ms. Washington a written response concerning the discipline hearing. In the letter, he indicated he has missed days due to medical reasons, he has attempted to call the school, but to no avail, and all of his log in information for the computer [Aesop] was erased due to a family member. [Resp. Exh. CC, pp. 1-2.]
17. For October 2017, the District’s Attendance Report showed Petitioner was absent from school due to personal illness for the following dates: October 3-6; October 12-13; October 20; and October 23-24. Petitioner was absent for a total of 9-days for October 2017, and did not include his three FMLA approved absences. [Resp. Exh. AA, pp. 1-2.]
18. On October 23, 2017, Petitioner sent Mr. Wood an e-mail at 2:53 a.m. stating “Have to be out today 10 23 frontline is a cting up (sic)[.]” [Pet. Exh. 10, p. 2.]
19. On October 24, 2017, Petitioner sent Mr. Wood and Ms. Angela McNeil-Chisholm an e-mail at 8:28 a.m. stating the following:
this is to tell you that aesop was not working fri or mon, for me at least, i called frontline, school center building and emailed them , and got no response
i have aesop saved in my phone , used it all semester, but nowit says invalid password pin # and username??? (sic)
[Pet. Exh. 10, p. 3.]
20. On November 3, 2017, Petitioner sent Mr. Wood and Ms. McNeil-Chisholm an e-mail at 4:17 a.m. stating the following:
I have to go to the doc today I’ve tried everything it didnt work aseop. Ive tried changing username and password and email frontline and called the help desk[.] (sic)
[Pet. Exh. 10, p. 4.]
21. On November 6, 2017, Mr. Wood sent an e-mail to Ms. Washington and Eleanor Glowinski, with Petitioner carbon copied (cc), regarding his excessive absences. As of the date of the e-mail, Mr. Wood indicated that Petitioner had been absent 28 total schools days, he did not report his absences in Aesop on multiple occasions, he sends “unintelligible emails as an attempt to report his absence[,]” it is putting a strain on his teachers to cover Petitioner’s preps, and there is a concern that the students are receiving a lack of instruction. [Resp. Exh. I, p. 1.]
22. For November 2017, Petitioner’s medical records showed that he was diagnosed with abdominal wall cellulitis, chronic midline low back pain with left-sided sciatica, gastroesophageal reflux diseases without esophagitis, mild intermittent asthma with acute exacerbation, and abdominal abscess. On November 13, 2017, Petitioner’s doctor wrote a letter stating Petitioner may return to work on November 14, 2017, but with no heavy lifting and no tight clothes for one week. On November 13, 2017, Petitioner requested FMLA for the period of November 1, 2017 to November 10, 2017, for surgery a surgical procedure. [Resp. Exh. J, pp. 1-6; Resp. Exh. K, p. 1; Resp. Exh. L, pp. 1-4; Resp. Exh. M, p. 1.]
23. On November 17, 2017, the District sent Petitioner a letter regarding Notification of Approval for FMLA Leave. The letter stated that Petitioner requested FMLA on November 13, 2017, and was approved for FMLA during the period of November 3, 2017 to November 14, 2017. [Resp. Exh. N, p. 1.]
24. On November 21, 2017, the District sent Petitioner an amended letter regarding his Notification of Approval for FMLA Leave. The letter stated that Petitioner requested FMLA on November 13, 2017, and was approved for FMLA during the period of November 3, 2017 to November 13, 2017. [Resp. Exh. O, p. 1.]
25. For November 2017, the District’s Attendance Report showed Petitioner was absent from school due to personal illness for the following dates: November 1-2; and November 15-17. Petitioner was absent for a total of 5-days for November 2017, and did not include his nine FMLA approved absences. [Resp. Exh. AA, p. 3.]
26. On December 12, 2017, Petitioner sent an e-mail to Ms. McNeil-Chisholm stating that he has been requesting school supplies since November 30, 2017, but to no avail. [Pet. Exh. 9, p. 1.]
27. On December 20, 2017, Ms. Washington sent Petitioner a Disciplinary Decision and Suspension Letter, and a letter dated December 15, 2017, which stated he would be suspended without pay for five days as a disciplinary action. The suspension would be from January 25-26, 2018, and January 29-31, 2018. The letter stated that Petitioner violated Work Rule 1, Work Rule 2, and unprofessional conduct, due to his excessive absences. [Resp. Exh. P, pp. 1-8.]
28. For December 2017, the District’s Attendance Report showed Petitioner was absent from school due to personal illness for the following dates: December 13; and December 22. Petitioner was absent for a total of 2-days for December 2017. [Resp. Exh. AA, p. 4.]
29. For January 2018, the District’s Attendance Report showed Petitioner was absent from school due to personal illness for January 11, 2018, and that he is suspended without pay for January 25-26 and 29-31, 2018. [Resp. Exh. AA, p. 4.]
30. In early February 2018, the District’s Attendance Report showed Petitioner was absent from school due to exhausting his sick leave bank for the following dates: February 1-2; and February 6-8. Petitioner ran out of sick days. [Resp. Exh. AA, p. 4; Tr. Vol. I, p. 80.]
31. On February 9, 2018, Petitioner sent an e-mail at 10:46 p.m. to Mr. Wood, Ms. Washington, and Nidia Ashby stating he was in the hospital last Thursday through Saturday with pneumonia, paperwork was faxed for FMLA, and he tried to come back to work on Monday. [Resp. Exh. Q, p. 1.]
32. On February 26, 2018, Mr. Wood sent Petitioner a Memo regarding written warning due to his absence on February 1 and 6-8, 2018, and that he failed to follow protocol for reporting employee absences. [Resp. Exh. R, p. 1.]
33. On February 26, 2018, Petitioner sent Mr. Wood an e-mail stating he will be absent due to his grandmother passing. That same day, Mr. Wood responded via e-mail to Petitioner with condolences, but that he must report any absences in the Aesop system. [Pet. Exh. 7, p. 1.]
34. On February 27, 2018, Petitioner sent Mr. Wood and Ms. McNeil-Chisholm an e-mail at 4:15 a.m. indicating he is unable to get into Aesop to request bereavement. [Pet. Exh. 7, p. 2.]
35. The District’s Attendance Report showed Petitioner was absent from school for bereavement purposes for the following dates: February 26-28, 2018, and March 1, 2018, due the passing of his grandmother. For March 2, 2018, this day would have also been for bereavement purposes, but the Attendance Report showed there was snow emergency. [Resp. Exh. AA, p. 5; Tr. Vol. I, pp. 83-84.]
36. The District’s Attendance Report showed Petitioner was absent from school for the following dates/reasons: March 7, 2018 – “No Call/No Show” for work; March 8, 2018 - Petitioner said ‘“I’ll be absent today’” for work and that the principal notified employee of an Administrative Conference; and March 9, 2018 – “Absent for cuz (sic) funeral and bereavement.” Petitioner stated March 7 to 9, 2018, he was absent and took bereavement due to the passing of his cousin, in which he was informed that cousins are not considered excused absences for bereavement. [Resp. Exh. AA, p. 5; Tr. Vol. I, p. 86; Tr. Vol. II, p. 277.]
37. On March 9, 2018, Petitioner sent Mr. Wood and Ms. McNeil-Chisholm an e-mail at 7:13 a.m. indicating “Absent for cuz funeral and berevement[.] (sic)” This absence is reflected in the Attendance Report for March 9, 2018. [Pet. Exh. 7, p. 3; Resp. Exh. AA, p. 5.]
38. From March 13-16 and 19-21, 2018, the District’s Attendance Report show Petitioner absent from work due to exhausting his sick leave bank. It also stated that Petitioner did not show for the Administrative Conference held on March 14, 2018. [Resp. Exh. AA, pp. 5-6.]
39. On March 21, 2018, Eleanor Glowinski, HR Manager, sent Petitioner a Notice of Authorized Absence informing him that as of March 12, 2018, he has been absent from work without authorization for a period exceeding four consecutive workdays. [Resp. Exh. S, p. 1.]
40. From March 22-23, and 26, 2018, the District’s Attendance Report showed Petitioner absent from work due to exhausting his sick leave bank. It also stated that Petitioner was cleared to return by medical on March 27, 2018, and that he came in and stayed one day, and went back out. [Resp. Exh. AA, p. 6.]
41. On March 28, 2018, the District’s Attendance Report showed Petitioner absent from work due to exhausting his sick leave bank. [Resp. Exh. AA, p. 6.]
42. On April 11, 2018, Ms. Washington sent Petitioner a letter informing of him of an Administrative Review/Interview scheduled for April 18, 2018. The letter stated that Petitioner is alleged to violate Work Rule 1 and excessive absenteeism. [Resp. Exh. U, pp. 1-2.]
43. On April 18, 2018, Ms. Washington sent Petitioner a letter informing him that he did not appear for the conference scheduled for April 18, 2018. The letter stated that Petitioner e-mailed Cecelia Revis, Technical Level II, Office of Employee Relations, and indicated ‘“my back is out I can barely walk going to dr sry (sic)[.]”’ The letter stated if Petitioner wished to provide a response to the charges of excessive absenteeism, he must submit a written response by April 23, 2018. The District’s Attendance Report indicted Petitioner was absent for April 18, 2018. [Resp. Exh. V, p. 3; Resp. Exh. A, p. 6.]
44. On April 22, 2018, Petitioner sent an e-mail to Mr. Wood and Ms. McNeil-Chisholm responding to the charges of excessive absenteeism, in which he stated the following: (i) he suffers from chronic back pain; (ii) he had pneumonia twice that accounted for about three weeks; (iii) he had two infections from a boil that left a hole an inch deep in him and he missed about three weeks of work for that; (iv) his left arm was numb and he was unable to move it above his head and he is left handed; (v) his grandmother and cousin passed in the same week, which was late February 2018, and that counted for a week of his absence; (vi) he is improving his health, including losing weight; (viii) he has a walnut size knot on the bottom of his foot due to a pinched nerve that made his right foot numb; (ix) he is a high school math teacher put into middle school; and (x) the District has all of his medical forms. [Resp. Exh. W, pp. 1-2.]
45. On April 23, 2018, Mr. Wood forwarded Petitioner’s e-mail dated April 22, 2018, to Ms. Washington and Ms. Revis, and indicated that Petitioner was absent from April 18-20, 2018. [Resp. Exh. W, pp. 1-2.]
46. On June 4, 2018, Mr. Wood and Ms. Washington sent Petitioner a letter charging him with violating Work Rule 1 (all employees are expected to report for duty every working day, excessive tardiness or absenteeism will not be condoned), and unprofessional conduct. The charges were contained in 22 numbered paragraphs, covering three pages. The charges requested that Petitioner be discharged from his employment with Respondent. [Resp. Exh. X, pp. 1-4.]
47. On June 7, 2018, Ms. Washington sent Petitioner a Conference for the Record, which was scheduled for June 11, 2018. The letter stated at the conference, he will be issued disciplinary action based upon the finding of violation of Work Rule 1 and unprofessional conduct. [Resp. Exh. Y, p 1.]
48. On June 12, 2018, the Board met and considered the charges. The Board approved the charges and the request to terminate Petitioner’s employment. The charges as well as the Board action on the charges were sent to Petitioner on June 13, 2018. [Resp. Exh. Z, p. 2; Resp. Exh. BB, pp. 1-21.]
49. Petitioner presented medical records showing that he suffered from several diagnoses for the 2017/2018 school year, including left upper extremity weakness secondary to C4-CD disc herniation, hypertension, diabetes, morbid obesity, severe anxiety, neck pain (numbness), abscess with cellulitis, chronic peripheral neuropathy, cellulitis of abdominal wall, radiology impressions of chest x-ray views and chest thorax with contrast views, and pneumonia, unspecified organism. [Pet. Exh. 1, p. 1; Pet. Exh. 2 p. 1; Pet. Exh. 3, p. 1; Pet. Exh. 4, p. 1; Pet. Exh. 5, p. 1; and Pet. Exh. 6, p. 1.]
50. Petitioner also presented his Time and Effort Daily Work Activity Log for October 18, 2017; October 23, 2017; October 27, 2017; November 21, 2017; and December 14, 2017, which showed his activity log that he conducted for Brewer Academy as a Title 1 teacher. [Pet. Exh. 8, pp. 1-5; Tr. Vol. I, pp. 153-154.]
51. For the 2017/2018 school year, Petitioner was counseled, issued verbal and written warnings, and disciplinary hearings were held resulting in suspensions without pay, but he continued to be absent. He had been absent for more than 60 days, but 12 of those days were approved FMLA days. He has been absent for more than 50 days without authorization from August 2017 through May 30, 2018. His absences caused hardship for the students and the District. Because of Petitioner’s conduct for the 2017/2018 school year, he violated the District’s Work Rule 1 and unprofessional conduct, resulting in the District’s proper determination to terminate Petitioner from his employment. [Resp. Exh. A, pp. 1-7; Resp. Exh. P, pp. 4-7; Resp. Exh. X, p. 2; Resp. Exh. BB, pp. 19-21.]
CONCLUSIONS OF LAW
The Commission has addressed the issue of absenteeism previously. The Commission recognizes that a fundamental obligation of an employee is to report to work. Pounder v Harper Woods Public Schools (74-5-2); Rickie Holley v Detroit Public Schools (07-28). The Commission has held that excessive absenteeism and tardiness without justifiable excuse are sufficient reasons for discharge. Urich v Board of Education for the Gibraltar School District (89-24). And finally, in the case of Echols v Highland Park School District (90-32), the Commission discussed how teachers are ordinarily required to be warned for excessive absences before sustaining discipline, as follows:
We cannot find that appellant was ever warned that her absences were excessive or were disruptive of the educational process. Such warnings are ordinarily required to sustain discipline of a tenured teacher for absenteeism. Fry v Board of Education of Romeo Community Schools (77-19), Graham v Board of Education of the Trenton Public Schools (78-12). Moreover, there has been no showing that appellant's absences exceeded the standards set by appellee either contractually or as a matter of policy. See Gladstone v Highland Park Board of Education (80-14).
Here, the District argued that Petitioner violated its Work Rule 1, and engaged in unprofessional conduct; Petitioner disagrees.
Work Rule 1: All employees are expected to report for duty every working day. Excessive tardiness or absenteeism will not be condoned.
First, Petitioner contends that he had a justifiable excuse for being absent from work due to his health issues for the 2017/2018 school year. [Tr. Vol. II, pp. 233 and 318.] Petitioner presented medical documents showing that he suffered from several medical diagnoses, such as hypertension, diabetes, and pneumonia. [See Pet. Exh. 1, p. 1; Pet. Exh. 2 p. 1; Pet. Exh. 3, p. 1; Pet. Exh. 4, p. 1; Pet. Exh. 5, p. 1; and Pet. Exh. 6, p. 1.] Despite Petitioner’s health issues, it is Petitioner’s responsibility to seek authorized absences from the District for medical reasons. Pursuant to the District’s Order Adopting Employee Family and Medical Leave Act and Extended Leave of Absence Policy and Procedures, it is the responsibility of the employee to submit a request for FMLA for medical reasons. [Resp. Exh. EE, pp. 1-13.] For the 2017/2018 school year, Petitioner only sought FMLA on two separate occasions: October and November 2017. [Resp. Exh. F, p. 1; Resp. Exh. K, p. 1; Resp. Exh. O, p. 1.] Petitioner failed to present evidence showing that he requested additional FMLA for medical reasons. The District approved both of Petitioner’s requests for FMLA, which resulted in 12 authorized absences during the school year for FMLA. [Resp. Exh. X, p. 2.] However, Petitioner was still absent for more than 50 days without authorization from August 2017 through May 30, 2018. [Resp. Exh. X, p. 2.] Further, during cross-examination of Petitioner, he acknowledged that he was absent a lot of days and that he should have obtained additional excused absences from his doctor for the days he was sick, but failed to do so. [Tr. Vol. II, pp. 235 and 237.]
If Petitioner was unable to work for extended periods of time due to his health issues (i.e., pneumonia), he should have sought FMLA on more than two occasions. Petitioner failed to follow proper protocol when seeking authorized absences for medical reasons. [See Tr. Vol. I, p. 118.] As a result, the undersigned ALJ does not find Petitioner’s argument persuasive that he had a justifiable excuse for being absent from work due to his health issues for the 2017/2018 school year.
Second, Petitioner contends that he was unable report his absences in the system due to his inability to log into the Aesop system throughout the school year. [Tr. Vol. I, pp. 33-36.] Petitioner indicates that Mr. Wood accused him on multiple occasions of failing to report his absences in Aesop. [See Resp. Exh. I, p. 1.] Petitioner argued that he contacted multiple people, including the District’s computer helpdesk/hotline, but was unsuccessful. [Tr. Vol. II, pp. 238-239.] Petitioner claimed he ultimately contacted Mr. Wood for assistance with Aesop (i.e., via e-mail), but to no avail. [Tr. Vol. I, pp. 33-34; Tr. Vol II, pp. 230-231.] Petitioner presented several e-mails showing him requesting login information for Aesop and/or him informing Mr. Wood of his difficulty of logging into the system. [See Pet. Exh. 7, p. 2; Pet. Exh. 10, pp. 1-4.]
In response, Mr. Wood recalled Petitioner having difficulty with the Aesop system, but that it was not a system wide problem. [Tr. Vol. I, pp. 109-110.] Mr. Wood stated that he was unable to assist Petitioner and that Petitioner would need to contact the District’s helpdesk to obtain access for Aesop. [Tr. Vol. I, pp. 140-142.]
Whether or not Petitioner had issues logging into the system, this argument does not address the issue that Petitioner was absent for more than 50 days without authorization during the school year. The overarching problem is that Petitioner’s excessive absenteeism caused hardship on the classroom, students, and the District staff. Nonetheless, a review of the record finds that there were examples of Petitioner not reporting his absences in the Aesop system, which resulted in disciplinary action by the District. For example, on September 6, 2018, the District’s Attendance Report showed that Petitioner was a No Call/No Show. [Resp. Exh. AA, p. 1.] On September 7, 2018, the District’s Attendance Report showed that Petitioner was absent and did not report on the system and called after the reporting time. [Resp. Exh. AA, p. 1.] As a result, Petitioner received written counseling from Mr. Wood on September 7, 2017, for these absences. [Resp. Exh. A, p. 1.] Eventually, a formal discipline hearing was held in October 2017, resulting in him being suspended without pay for five days as a disciplinary action. [Resp. Exh. P, pp. 1-8.] The undersigned ALJ cites these examples because it evidences Petitioner failure to report his absences timely and was unprofessional on his part. Lastly, Petitioner was provided the opportunity to dispute these allegations that he did not report his absences timely at the discipline hearing in October 2017, but he called in sick. [Resp. Exh. G, p. 1.] For these reasons, the undersigned does not find Petitioner’s argument persuasive that his inability to login into the Aesop system is a reasonable excuse for his absences and/or that it is not unprofessional on his part.
Third, Petitioner disputed his working environment and lack of support from the District. [Tr. Vol. II, p. 233.] He testified he was teaching out of his certification at Brewer Academy. [Tr. Vol. II, pp. 231-232.] He testified he had a strenuous work environment and he was not given the proper tools to teach, which caused additional stress and exacerbated his back problems. [Tr. Vol. II, p. 231.] Petitioner claimed he lacked support from the District, including his failure to get a key to his classroom until March 2018. [Tr. Vol. I, p. 179; Tr. Vol. II, p. 231.] In fact, Petitioner provided several witnesses to support his contention that he lacked support from the District, which included Mark Simpson and Carla Caldwell, teachers from Brewer Academy. [Tr. Vol. II, pp. 253-254 and 260-261.] Moreover, Petitioner argued that he continuously asked for supplies from the District but was denied by Ms. Black. [Tr. Vol. I, pp. 210-211; Tr. Vol. II, pp. 306-307; Pet. Exh. 9, p. 1.] Ms. McNeil-Chisholm testified Petitioner was upset that Ms. Black refused to give him adequate supplies. [Tr. Vol. II, pp. 304-305.]
In regards to Petitioner’s dispute with his working environment and lack of support from the District, the undersigned ALJ finds these arguments neither persuasive nor relevant. As to Petitioner’s claim that he had a strenuous work environment, again, he should have obtained doctor’s excuses and/or FMLA when seeking authorized absences for stress and/or health related reasons, but he failed to do so. Ultimately, Petitioner’s arguments do not address the issue of his excessive absenteeism.
Here, Petitioner has a long pattern of excessive absenteeism at different work locations prior to joining Brewer Academy. [Resp. Exh. P, pp. 4-7; Resp. Exh. BB, pp. 19-21.] Once joining Brewer Academy, his absences continued during the 2017/2018 school year. On September 7, 2017, Petitioner was provided with written warning due to his absences and his failure to follow the protocol for reporting employee absences. [Resp. Exh. A, p. 1.] Despite this written warning, Petitioner continued his absenteeism. Petitioner was absent for a total of 12-days in September 2017, 9-days in October 2017, 5-days for November 2017, and 2-days for December 2017. [Resp. Exh. AA, pp. 1-4.] On December 20, 2017, Petitioner was provided with written notification that he would be suspended without pay for five days as a disciplinary action because of violating Work Rule 1, Work Rule 2, and unprofessional conduct. [Resp. Exh. P, pp. 1-8.] The disciplinary action further notified Petitioner that this action was intended as a final opportunity to improve his behavior, but if he violates any Work Rules or policies, a recommendation will be made to terminate his employment. [Resp. Exh. P, p. 8.] After receiving this warning and after having exhausted his sick leave bank beginning in February 2018, Petitioner continued his pattern of absenteeism. [Resp. Exh. AA, p. 4] On February 26, 2018, Petitioner was again provided with written warning due to his absences, and that he failed to follow protocol for reporting employee absences. [Resp. Exh. R, p. 1.] From February 2018 to March 2018, Petitioner continued to be absent from school without pay. [Resp. Exh. AA, pp. 4-5] On March 21, 2018, Petitioner was provided with written notice that he had been absent from work without authorization for a period exceeding four consecutive workdays. [Resp. Exh. S, p. 1.]
Overall, Petitioner was absent for more than 50 days without authorization during the 2017/2018 school year. [Resp. Exh. X, p. 2.] He was counseled, issued verbal and written warnings, and disciplinary hearings were held resulting in suspensions without pay, but he continued to be absent. Petitioner did not change his behavior of a continued pattern of absenteeism without valid justification. His excessive absenteeism caused disruption to the education process for the students. Further, his excessive absenteeism caused hardship for the District staff as teachers would need to reposition their schedules to accommodate his absences. As stated previously, a fundamental obligation of an employee is to report to work. Pounder v Harper Woods Public Schools (74-5-2); Rickie Holley v Detroit Public Schools (07-28). Attendance is critical. As a result of Petitioner’s excessive absenteeism, the undersigned ALJ finds that Petitioner’s conduct violated Work Rule 1.
Unprofessional Conduct
Petitioner was also charged with unprofessional conduct. As demonstrated above, his conduct of being excessively absent from work, including his failure to follow protocol when notifying the District of his absences on more than one occasion is unprofessional. [See Resp. Exh. P, p. 6; Tr. Vol. I, p. 111.] His conduct caused hardship for the classroom, school environment, and the District staff. As a result, the undersigned ALJ finds that these actions are unprofessional conduct by a teacher.
Appropriate Discipline
The Commission has held that it is their responsibility to review the quality and quantity of the evidence and to determine if the decision to discharge Petitioner is the result of a deliberate, principled reasoning process supported by evidence. Additionally, as noted in Cona, the Commission held even if there are factors that would support a less drastic level of discipline than that chosen by a controlling board, “[O]ur duty is not to fashion the penalty that we ourselves would prefer but to review the controlling board’s decision for arbitrariness and capriciousness.”
Based on a careful review of the evidence in this case, it cannot reasonably be said that Petitioner’s discharge decision was based on whim or caprice or that it was made without reasonable consideration of evidence. Nor does the record support a finding that the controlling board failed to consider important evidence or that it failed to appreciate the significance of evidence.
In this case, the Board determined that Petitioner’s actions violated work rules/unprofessional conduct, resulting in the decision to terminate his employment. The undersigned ALJ agrees. Here, the decision to terminate Petitioner’s employment was the result of a deliberate, principled reasoned process supported by evidence. The Respondent district gave the Petitioner every opportunity to change his behavior, but he ignored all of their warnings and even did not change his behavior following a five-day unpaid suspension that was noted to be his last chance.
Because the undersigned ALJ has found that the Board’s decision was the result of deliberate, principled reasoning based on evidence as required by MCL 38.101(1), the Administrative review of the Controlling board’s decision ends. The Szopo factors[5] need not be addressed. Green v Reeths-Puffer Public Schools (16-13) and see Mertz v. Byron Center Public Schools Board of Education (17-9).
Accordingly, Respondent has established by a preponderance of the evidence that Petitioner violated the work rules/unprofessional conduct. The undersigned ALJ concludes that Respondent has established by a preponderance of the evidence that its decision to terminate Petitioner’s employment is not arbitrary or capricious.
ORDER
IT IS ORDERED that Respondent's discharge of Edward Norwood is appropriate and he is hereby discharged.
EXCEPTIONS
A party may file a statement of exceptions to the decision and order or to any part of the record or proceedings including rulings on motions or objections, with the State Tenure Commission. The statement of exceptions must be accompanied by a brief in support of the exceptions and filed in accordance with Commission Rules. The brief and statement of exceptions must be served upon each of the parties within the time limit for filing exceptions and brief.
A party may file a statement of cross-exceptions or a statement in support of the preliminary decision, accompanied by a brief, with the State Tenure Commission, not later than 10 days after being served with the other party's exceptions and brief. MCL 38.71 et seq. Commission Rules require that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions and that the argument must be prefaced by the exception/cross-exception which it addresses. Commission Rule 46; 1998-2000 AC, R 38.176.
The deadline for filing exceptions and brief is October 15, 2018. Exceptions must be received by the Commission before the close of business on the last day of this time limit. Exceptions can be electronically filed with the Commission at MDE-AdminLaw@michigan.gov. Exceptions can also be sent to the following address:
Office of Administrative Law
608 West Allegan Street
P.O. Box 30008
Lansing, Michigan 48909.
A matter not included in the statement of exceptions or statement of cross-exceptions is considered waived and cannot be heard before the Commission or on appeal to the Court of Appeals.
If exceptions are not timely filed, this decision and order becomes the State Tenure Commission's final decision and order.
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Eric J. Feldman |
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Administrative Law Judge
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Please note that this Decision and Order may be edited prior to publication on the Michigan Department of Education web site. Readers are requested to promptly notify the Office of Administrative Law of any typographical or other non-substantive errors so that corrections can be made prior to publication.
[1] Neither Petitioner nor Respondent’s Counsel objected to any of the witnesses’ phone testimony.
[2] Exhibit 8 was admitted over Respondent’s relevance objection.
[3] Exhibit 9 was admitted over Respondent’s relevance objection.
[4] The Attendance Report was created by Mia Black, Secretary at Brewer Academy, who was responsible for recording staff attendance. The document was created to show a list of Petitioner’s absences, including the associated absence codes. [Tr. Vol I, p. 127.]
[5] Szopo v Richmond Community Schools Board of Education (93-60) (factors for determining level of discipline for misconduct).