STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. A formal hearing was conducted on January 29, 2009, in Deland, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Erin G Jackson, Esquire

Thompson, Sizemore, Gonzalez, & Hearing, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the School District of Volusia County has just cause to terminate the Respondent from her position of employment due to

insubordinate behavior and unsatisfactory performance of her job duties.

PRELIMINARY STATEMENT

This cause arose upon notification to the Respondent by James R. Holland, School District of Volusia County (Board), Director of Professional Standards, on June 25, 2008, by letter, that the Respondent's employment would be terminated. In essence, the Board proposes to terminate the Respondent's employment for misconduct involving insubordination and repeated neglect of duties.

The Respondent, a school custodian, chose to contest the termination and availed herself of the opportunity for a formal proceeding before the Division of Administrative Hearings. In due course the matter was referred to the undersigned Administrative Law Judge and hearing was scheduled. There was one continuance at the request of counsel for the Board, without opposition, and the matter was set a second time and heard on January 29, 2009.

The cause came on for hearing as noticed. At the hearing, the Petitioner School Board presented the testimony of James Holland, the Director of Professional Standards for the Board, Dewayne Copeland, Assistant Principal at Hurst Elementary School, Maryann Bull, the Principal at Hurst Elementary School, Laura Williamson, the Principal at Discovery Elementary School,

Yolanda Cintron, Stephen Mallory, an Assistant Principal at Discovery Elementary School, and Patricia Corr, an Assistant Principal at Mainland High School. The Petitioner presented 18 Exhibits which were admitted into evidence. The exhibits are not numbered consecutively, they consist of Petitioner's Exhibits 1, 2, 3, 4, 5, 6, 16, 18, 21, 23, 25, 38, 40, 44, 49,

and 50.

The Respondent did not appear at the hearing and thus presented no testimony or exhibits. The record reflects that the Notice of Hearing (or Order Re-scheduling Hearing) for the January 29, 2009, hearing date was issued by the undersigned on November 6, 2008, and sent to the Respondent at the last known address of record. The Notice mailed to the Respondent never was returned undelivered by the U.S. Postal Service. Counsel for the Petitioner recounts that although she made numerous efforts to contact the Respondent, there has been no communication with the Respondent since her deposition was taken on October 28, 2008. An exhibit list and witness list was sent by counsel for the Petitioner to the Respondent, but elicited no reply and there has been no communication since October 28,

2008.

There has been no communication with the office of the

undersigned from the Respondent at any time before or since the hearing. The hearing was scheduled to commence at 10:00 a.m. on

January 29, 2009. The undersigned arrived at 9:45 in the hearing room and saw no one appearing to be the Respondent in the vicinity or environs of the courtroom or the courthouse. No School Board personnel, nor counsel for the Board observed the Respondent or had any communication with the Respondent on the day of the hearing. Upon inquiry by the undersigned of persons in the courtroom, none had observed the Respondent on the day of the hearing in the vicinity of the courthouse in Deland or otherwise.

Accordingly, at approximately 10:20 a.m., with the Respondent still not appearing, the above-referenced matters concerning the Notice of the Hearing, etc., were recited on the record by the undersigned, and counsel for the Petitioner responded to the undersigned's questions regarding communication with or observation of the Respondent. At that point, the hearing was commenced and the Petitioner Board presented its case inasmuch as the Board has the burden of proof in this matter. The Respondent never did appear at the hearing and there has been no communication or inquiry from the Respondent of the undersigned's office since the time of the hearing.

Upon concluding the hearing the Petitioner ordered a transcript thereof and requested the opportunity to submit a proposed recommended order. That Proposed Recommended Order has been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Vannesther Smith, was employed at times pertinent hereto by the Board as a custodian. The Respondent was hired as a custodian in 2003 and initially assigned to Hurst Elementary School. While at Hurst she was disciplined for inappropriate behavior. She was issued a record of being counseled for inadequate employee performance by Assistant Principal, Dwayne Copeland. He counseled with Ms. Smith concerning her reporting to work late, repeatedly, without informing her supervisors and for not adhering to proper work procedures concerning repeatedly leaving work early. The Respondent was then disciplined and counseled sometime later by Mr. Copeland for not adequately cleaning her assigned area and for insubordination. Thereafter, on October 12, 2006, less than two months later, the Respondent was disciplined yet again and counseled for poor employee performance, by failing to follow proper directives and again for not cleaning her work area.

2. A report was made to the Board's Office of Professional Standards to the effect that the Respondent was not performing her work duties during her scheduled work time, and was speaking and interacting with supervisors in an unprofessional, inappropriate manner. The Office of Professional Standards conducted an investigation into the allegations regarding unprofessional inappropriate conduct. James Holland, the

   Director of the Office of Professional Standards, determined that the evidence from his investigation supported the allegations.

3. On April 5, 2007, the Respondent was issued a letter of reprimand and ultimately suspended without pay for 20 days by the Board for failing to follow proper procedures and directives from administrators and for losing her temper and screaming at two administrators. She accused them of being "liars" when she was found sleeping on duty.

4. On June 26, 2007, Principal Maryann Bull observed the Respondent again failing to perform her duties while supposedly on duty. When the Respondent was confronted about this she acted in an inappropriate, unprofessional and insulting manner, mocking the principal and refusing to do as directed, thus committing insubordination. An investigation was again conducted by the Office of Professional Standards and the Respondent was reprimanded for insubordination and inappropriate confrontation with Principal Bull. On July 17, 2007,

   Mr. Holland informed the Respondent that she would be transferred to Mainland High School.

5. On September 24, 2007, the Respondent went on leave for an extended period of time. The Assistant Principal at Mainland High School, Patricia Corr, asked the Respondent to return the school-issued door keys, while she would be on leave. The

   Respondent had a key to the front door at Mainland High School. The Respondent told Ms. Corr she would turn them in, but never did return the keys. Ms. Corr repeatedly asked for the keys, but the Respondent never delivered them. The Respondent was informed then that she would be transferred to Seabreeze High School. She was instructed to report there for duty, but failed to do so. The Board did not then terminate the Respondent but instead gave her another chance to reform.

6. On April 8, 2008, the Respondent was assigned to Discovery Elementary School. Just two days after reporting for duty the Respondent engaged in inappropriate behavior and was counseled by Principal Laura Williamson for failure to use School Board chemicals and equipment properly, for failing to complete duties as assigned, as well as for insubordination.

7. On April 14, 2008, the Respondent was found sleeping in her car while supposedly on duty. She was again found not to have cleaned her area properly. Because of that behavior the Respondent was issued a letter or reprimand.

8. Assistant Principal Corr, from Mainland High School, contacted the Professional Standards Office concerning the Respondent's failure to return the keys to Mainland High School. An investigation of this matter was initiated by the Professional Standards Office.

9. On June 9, 2008, Ms. Williamson, from Discovery Elementary School, contacted the Professional Standards Office with a new allegation of unprofessional behavior. Specifically, the Respondent left work on Friday, June 6, 2008, without permission. The Respondent placed her keys in the keyhole of the custodial closet located on the exterior of the building and placed her two-way radio on the floor next to the door. On Monday, June 9, 2008, Yolanda Cintron, the Head Custodian, confronted the Respondent about leaving early. The Respondent became very irate and began yelling and cursing. The other custodians were somewhat frightened by the Respondent's behavior.

10. Upon conclusion of the Professional Standards investigation into the Respondent's behavior, a recommendation was made to the Board that the Respondent be terminated, based on the incidents described at Discovery Elementary School and the extensive history of the Respondent's failure to adhere to Board policies and procedures and insubordination. The recommendation of termination was approved by the Board on June 24, 2008.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008)

12. The Petitioner is the moving party seeking to change the status quo in this matter, by seeking the termination of the Respondent from her employment with the Board. Therefore, the Petitioner Board has the burden of proof by a standard of a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2nd DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990);

    § 120.57(1)(j), Fla. Stat. (2008). The issue to be resolved in this proceeding concerns whether the Board has just cause to terminate the Respondent from employment.

13. The evidence in this case leaves no doubt that the Board has just cause to terminate the Respondent. The Board continuously made efforts through the relevant personnel to assist Smith in improving her performance to a satisfactory level under the standards the Board applies to all employees. Despite the Board's persistence in giving additional chances to correct her performance, the Respondent repeatedly failed to heed the counseling, and engaged in conduct directly inconsistent with her obligation to conduct herself in the manner prescribed by the Board's rules and polices. No testimony or evidence was offered to refute the compelling evidence presented by the Board that just cause exist for the Respondent's termination. See Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2nd DCA 1994).

14. There is no question that the Respondent has been guilty of excessive absenteeism, primarily in the form of repetitively arriving late to work and leaving early without permission. Absenteeism has been determined to be a just cause for termination. Duval County School Board v. Johnson, DOAH Case No. 04-2138 (RO: Mar. 2, 2005, Final Order May 3, 2005); Hernando County School Board v. Gallagher, DOAH Case No. 08-1012 (RO: Dec. 4, 2008, Final Order Jan. 20, 2009). Repetitive gross insubordination, unprofessional conduct, and failure to properly perform assigned duties, after repeated counseling concerning proper performance, is also clearly an adequate basis to support just cause for termination of employment. The unrefuted evidence clearly establishes just cause for the Board's decision to terminate the Respondent's employment.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that a final order be entered by the School Board of Volusia County, Florida, terminating the employment relationship of the Respondent and the School Board of Volusia County, Florida.

DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.

COPIES FURNISHED:

Erin G Jackson, Esquire Thompson, Sizemore, Gonzalez, &

Hearing, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

Vannesther Smith

Post Office Box 250322 Daytona Beach, Florida 32125

James R. Hollins

Director of Professional Standards Volusia County School Board

Post Office Box 2118 DeLand, Florida 32721-2118

Dr. Margaret A. Smith Superintendent of School Volusia County School Board Post Office Box 2118 DeLand, Florida 32721-2118

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.

Docket for Case No: 08-003474

Orders for Case No: 08-003474