STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs.

CAROLE M. ROSENTHAL,

Respondent.

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) Case No. 10-0897

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 6, 2010, in Largo, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779

For Respondent: Carole M. Rosenthal, pro se

8264 136th Street, North Seminole, Florida 33776

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Pinellas County School Board Policies 8.25(1)(j) and 8.25(1)(t), and, if so, whether Petitioner should suspend Respondent for three days.

PRELIMINARY STATEMENT

By letter dated November 20, 2009, the Superintendent of the Pinellas County Schools advised Respondent, Carole Rosenthal (Ms. Rosenthal), that she would be recommending to Petitioner, Pinellas County School Board, that Ms. Rosenthal be suspended for three days for violation of Pinellas County School Board Policies 8.25(1)(j) for incompetence and 8.25(1)(t) for failure to correct performance deficiencies. Ms. Rosenthal requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on February 19, 2010.

The case was originally assigned to Administrative Law Judge J.D. Parrish, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

At the final hearing, Petitioner presented the testimony of the following witnesses: Marilyn Lusher, Karen Cope, Terri Alford, and Valencia Walker. Petitioner’s Exhibits 1, 3

through 14, and 16 through 18 were admitted in evidence. Ms. Rosenthal testified in her own behalf. Respondent’s Exhibits 1 and 2 were admitted in evidence.

The one-volume Transcript was filed on May 13, 2010. The parties agreed to file any proposed recommended orders within ten days of the filing of the Transcript. On May 24, 2010, Petitioner filed its Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. As of

the date of this Recommended Order, no post-hearing submittal has been filed by Ms. Rosenthal.

FINDINGS OF FACT

1. Ms. Rosenthal is employed by Petitioner as a clerk specialist III in the specialized hiring section of the human relations department of the Pinellas County School District. Part of her assigned duties includes processing applications for substitute teachers to be employed by Pinellas County Schools. Ms. Rosenthal has been employed as a clerk specialist III since 2000. Her job responsibilities include the accurate and timely processing of data and files in the specialized hiring department of the Pinellas County School District.

2. On January 12, 2008, Ms. Rosenthal met with Starla Metz, who at that time was the human resources director for specialized hiring, concerning the length of time Ms. Rosenthal was taking to process on-line substitute applications.

   Ms. Rosenthal was directed to use a weekly list to track the status of the on-line applications and to enter information in the sub database when she spoke with or emailed an applicant. Terri Alford, a human resources specialist, was directed to meet with Ms. Rosenthal each Friday to offer support as needed.

3. In February Marilyn Lusher replaced Ms. Metz as director. Beginning on April 10, 2008, and continuing for about five meetings thereafter, Ms. Lusher met with the specialized

   
   

   hiring department to clarify and explain the department’s processes, to communicate transitions within the department, and to emphasize her expectations regarding accuracy and the need for confidence in the clerks’ data entry process. A checklist for the front of each file was updated, as well as detailed instructions for the clerks.

4. Terri Alford and Karen Cope, a human resource specialist, supervised Ms. Rosenthal. They advised Ms. Lusher that Ms. Rosenthal continued to make clerical errors.

   Ms. Lusher requested that they provide her with specific instances in which errors were made. Ms. Alford and Ms. Cope documented the errors and presented them to Ms. Lusher.

   Additionally, Ms. Alford and Ms. Cope were instructed to document errors made by others in the department.

5. On August 7, 2008, Ms. Lusher met with Ms. Rosenthal concerning performance deficiencies in Ms. Rosenthal’s work. Ms. Rosenthal had inaccurately retrieved information on an individual which would make the individual ineligible for hiring. A letter to the individual stating that the individual was a no hire had to be retrieved from the mailroom. Additionally, Ms. Rosenthal had made other errors such as: filing information in an applicant’s file that should have been filed in another applicant’s file, making inaccurate data entries in Winocular, and delaying the processing of

   
   

   applications. Ms. Rosenthal was given some steps to take in order to improve her work performance. Ms. Alford was to continue to meet with Ms. Rosenthal on Fridays to determine what support Ms. Rosenthal might need. Ms. Rosenthal always declined any additional help.

6. Ms. Rosenthal’s poor work performance continued, and Ms. Lusher met with Ms. Rosenthal on August 15, 2008, to again discuss performance deficiencies. Ms. Rosenthal had taken some steps to correct her errors, but she continued to have delays in processing, inaccurate data entry, incomplete files, and errors in pulling the correct files. At that time, it was determined that future evaluations of Ms. Rosenthal’s performance were to be done using the Supporting Services Performance Appraisal form, which meant that Ms. Rosenthal’s performance would be rated as unsatisfactory, needs improvement, satisfactory, or better than satisfactory.

7. On August 15 and September 12, 2008, Ms. Lusher met with Ms. Rosenthal to discuss errors that Ms. Rosenthal continued to make in her work. On September 26, 2008,

   Ms. Lusher and Dr. Ron Stone, assistant superintendent of Human Resources, met with Ms. Rosenthal to discuss Ms. Rosenthal’s inappropriate use of the computer and the Internet during working hours. Ms. Rosenthal was cautioned to refrain from the inappropriate use of the computer and to improve the accuracy

   
   

   and timely completion of her work. She was advised that there appeared to be a correlation between her inordinate use of the Internet and her poor work performance.

8. Prior to the September 26, 2008, meeting, Ms. Rosenthal had requested that she be given additional time beyond her scheduled work hours to complete her work. This time would be compensated either as overtime or as compensatory time. At the September 26, 2008, meeting, Ms. Lusher informed Ms. Rosenthal that she would no longer be given additional time to complete her work.

9. On October 23, 2008, Ms. Rosenthal was given a written reprimand for the unacceptable quality and quantity of her work. Ms. Rosenthal was directed to improve her work performance.

10. After the written reprimand was issued, Ms. Rosenthal continued to make numerous clerical errors. Ms. Lusher’s job responsibilities increased dramatically, and she did not have the time to devote to meetings with Ms. Rosenthal to discuss Ms. Rosenthal’s deficient work performance. However, in

    August 2009, Ms. Lusher again met with Ms. Rosenthal to discuss Ms. Rosenthal’s errors in the processing or the absence of processing additional duty forms that were needed to process payroll for certain employees. Ms. Rosenthal had also provided some inaccurate information on extra duty time that was used in an agenda item for Petitioner, resulting in a complaint from the

    
    

    Superintendent of the Pinellas County Schools. Other issues were discussed such as Ms. Rosenthal’s personal telephone conversations while at work, Ms. Rosenthal’s transferring telephone calls to other team members when Ms. Rosenthal should have been able to answer the telephone inquiries, and

    Ms. Rosenthal’s failure to stay at her desk to answer the telephone when other team members were at lunch.

11. On September 29, 2009, Ms. Rosenthal received a performance appraisal. She received an unsatisfactory rating for quality of work and a needs-to-improve rating for job knowledge, quantity of work, and initiative. She received satisfactory ratings for the other areas of her work.

12. Ms. Rosenthal argues that, although she made mistakes, other team members also made mistakes. When Ms. Rosenthal’s mistakes are compared to the mistakes of other team members,

    Ms. Rosenthal’s are significantly greater in number. The use of the Internet and the conduct of personal business during work time contribute to Ms. Rosenthal’s inability to improve the quantity of her work.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).1

14. Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes, provide authority to Petitioner to suspend educational support employees with or without pay. A “clerical employee” such as Ms. Rosenthal is an educational support employee.

Subsection 1012.40(2)(e), Florida Statutes, provides that the collective bargaining agreement shall state the reasons for discipline of educational support employees. The collective bargaining agreement between the School Board of Pinellas County, Florida, and the Pinellas Educational Support Professionals Association, Incorporated, provides that just cause for disciplinary action shall be provided by the Pinellas County School Board Policy.

1. Petitioner has alleged that Ms. Rosenthal violated Pinellas County School Board Policies 8.25(1)(j) and 8.25(1)(t). Petitioner has the burden to establish these allegations by a preponderance of the evidence. McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2nd DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995).

2. Pinellas County School Board Policy 8.25(1)(j) provides that an employee may be disciplined for incompetence. The disciplinary range is from reprimand to dismissal. Pinellas County School Board Policy 8.25(1)(t) provides that an employee may be disciplined for failure to correct performance

   
   

   deficiencies. The disciplinary range for this offense is caution to dismissal.

3. There is no Pinellas County School Board Policy which defines “incompetence.” However, Florida Administrative Code Rule 6B-4.009(1) defines “incompetency” as the “inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . .” Petitioner has established by a preponderance of the evidence that Ms. Rosenthal is guilty of incompetence. She made numerous clerical errors in 2008 and 2009 which affected the quality of her work. She was counseled concerning these errors and provided with instructions on ways to improve the quality and quantity of her work. She continues to make errors in her work and does not have the ability to produce a timely and accurate work product.

4. Petitioner has established by a preponderance of the evidence that Ms. Rosenthal has failed to correct her performance deficiencies. She was given ample opportunity to correct her errors and failed to do so. Ms. Lusher met with her on numerous occasions to counsel her and to provide suggestions for improvement. In October 2008, Ms. Rosenthal was given a written reprimand for her poor performance, but still failed to correct her deficiencies.

   
   

5. Pinellas County School Board Policy 8.25(3) provides:

   
   

   (3) The following aggravating and mitigating factors or circumstances will be considered when determining the appropriate penalty within a penalty range:

   
   

   1. The severity of the offense

      
      

   2. Degree of student involvement

      
      

   3. The danger to the public

      
      

   4. The number of repetitions of the offenses and the length of time between offenses

      
      

   5. The length of time since the misconduct

      
      

   6. The number of times the employee has been previously disciplined by the district as well as the type of discipline

      
      

   7. The contributions of the employee

      
      

   8. The actual damage, physical or otherwise, caused by the misconduct

      
      

   9. The deterrent effect of the discipline imposed

      
      

   10. Any effort of rehabilitation by the employee

       
       

   11. The actual knowledge of the employee pertaining to the misconduct

       
       

   12. Attempts by the employee to correct or stop the misconduct

       
       

   13. Related misconduct by the employee in other employment including findings of guilt or innocence, discipline imposed and disciplined served

       
       

   14. Actual negligence of the employee pertaining to any misconduct

       
       

   15. Pecuniary benefit or self-gain to the employee realized by the misconduct

       
       

   16. Degree of physical and mental harm to a student, co-worker or member of the public

       
       

   17. Length of employment

       
       

   18. Whether the misconduct was motivated by unlawful discrimination

       
       

   19. Any relevant mitigating or aggravating factors under the circumstances

       
       

   20. Employee’s Evaluation

   
   

6. The aggravating circumstances applicable to the instant case under Pinellas County School Board Policy 8.25(3), include 8.25(3)(d), (e), (j), (k), (l), (n), (q), and (t). Under the progressive discipline established by Petitioner, a three-day suspension without pay is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Rosenthal is guilty of incompetence in violation of Pinellas County School Board Policy 8.25(1)(j) and failure to correct performance deficiencies in violation of Pinellas County School Board Policy 8.25(1)(t) and suspending her for three days without pay.

DONE AND ENTERED this 7th day of July, 2010, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2009 version.

COPIES FURNISHED:

Laurie A. Dart, Esquire Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779

Carole M. Rosenthal

8264 136th Street, North Seminole, Florida 33776

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Julie M. Janssen, Superintendent Pinellas County School Board

Post Office Box 2942 Largo, Florida 33779-2942

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: 10-000897TTS

Orders for Case No: 10-000897TTS