11-000570TTS Hernando County School Board vs. Roseann Delvalle Status: Closed Recommended Order on Friday, August 26, 2011.

Summary: Given Petitioner's unblemished record prior to the incident at issue, and lack of culpable intent to commit the violations, discharge is too extreme a penalty under the circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 1 1 - 0570

)

ROSEANN DELVALLE , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to no tice, a formal hearing was held in this case

on June 8, 2011, in Brooksville, Florida, before W. David

Watkins, the duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, II , Esquire

School Board of Broward County

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

For Respondent: Mark Herdman, Esquire

Herdman and Sakel larides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate

Respondent's employment.

PRELIMINARY STATEME NT

A P etition for T ermination of E mployment was filed with the

Division on February 4, 2011. An Initial Order was issued the

same date requesting hearing dates from the parties. A Notice

of Hearing was then issued on April 19, 2011, setting the case

for final hearing on June 8, 2011, in Brooksville, Florida.

At the hearing, Petitioner pres ented the testimony of five

witnesses: Elizabeth Rios, Kitchen Manager, Springstead High

School; Lori Drenth, Director, Food and Nutrition Services;

Stephanie Howland - Wood, Maintenance Inventory Specialist; Chris

Harvey, Maintenance Department; and Heather Martin, Executive

Director, Business Services and Human Re sources. In addition,

Petitioner's Exhibits 1 Î 22 were received in evidence .

Respondent presented the tes timony of one witne ss: Roseann

Delvalle, and offered one composite exhi bit into evidence

( RespondentÓs performance evaluations ) . At the conclusion of

the hearing, the parties agreed to file proposed recommended

orders within ten days of the transcript bei ng filed with the

Division .

The T rans cript was filed on June 15, 2011 . Petitioner

filed its Proposed Rec ommended Order on June 13, 2011, and

Respondent filed its Proposed Recommended Order on June 27,

2011. Both P roposed O rders have been carefully cons idered in

the preparation of this Recommended Order.

All citations are to Florida Statutes (2010) unless

otherwise indicated.

FINDINGS OF FACT

A. Undisputed Findings of Facts

1. The Respondent is a Food and Nutrition Assistant I with

the Hernando Count y School District (District).

2. Respondent worked at Springstead High School (SHS).

She was responsible, among other things, for preparing the meals

for the nearby charter school, Gulf Coast Academy, and for

transport ing those meals to the school once they were prepared.

3. Respondent use d a District van to transport meals from

SHS to Gulf Coast Academy.

4. On November 22, 2010, Respondent prepared the meals for

Gulf Coast Academy and before leaving on her delivery run

informed her supervisor, E lizabeth Rios, that the delivery van

needed fueling.

5. Ms. Rios advised the Respondent she should fuel the van

after her delivery and to ask the ÐladyÑ for help if needed.

6. Respondent made her delivery to the charter school and

before returning to SHS, stopped at the maintenance complex to

fuel the van as discussed with Ms. Rios.

7. Respondent attempted to fuel the van at a gas pump but

discovered she could not do so without a Ðblue keyÑ which was

needed to run the pump.

8. Respondent left the pump to get assistance but did not

remove the hose before pulling away. As a result, the hose

broke away from the pump and was left hanging onto the side of

the van.

9. Respondent returned to the pump and reattached the hose

to the pump.

10. Respond ent then called her supervisor, Ms. Rios.

R espondent stated Ms. Rios told her to see Lori Drenth, Director

of Food and Nutrition Services , about getting a blue key.

1 1 . Ms. Rios stated that Respondent told her the ÐladyÑ

who could help with the fueling was on lunch so she would have

to wait for her to get back to get help. She furthermore stated

that when asked if everything was Ð OK, Ñ Respondent advised that

ÐsomeoneÑ had broken the pump. She said nothing to Ms. Rios

about her involvement in breaking the hose.

1 2 . Respondent next went to Lori DrenthÓs office in the

building adjacent to the m aintenance building to see about

getting help. Ms. Drenth phoned Christine Harvey in Maintenance

for assistance. Ms. Harvey was not available , so Ms. Drenth

le ft a phone message. She then called a secretary in

Mainte nance who advised that Ms. Harvey was likely at lunch with

Stephanie Wood , Ms. Harvey's backup.

1 3 . Ms. Drenth then advised Respondent she would simply

have to go back to Maintenance and find Ms. Harvey or Ms. Wood.

Respondent said nothing to Ms. Drenth about the fact that she

broke the pump by pulling the hose off with the van.

1 4 . Respondent returned to the pump , entered the

m aintenance building , and eventually located Ms. Harvey and

Ms. Woo d who had by that time returned from lunch.

1 5 . Respondent and Ms. Wood proceeded to attempt to fuel

the van. Ms. Wood showed R espondent how to use the ÐblueÑ and

ÐwhiteÑ keys to turn the pump on , and then handed Respondent the

hos e so that she could f uel the van. When Respondent attempted

to place the fuel hose in the van, the hose detached from the

pump which caused gasoline to spill on the ground and on Ms.

Wood ' s hands. Ms. Wood immediately shut the pump off and then

called Ms. Harvey. Ms. Wood s tepped away from the pump to make

the call as she was concerned about causing a spark around the

spilled fuel.

16 . Respondent did not say anything to Ms. Wood or

Ms. Harvey about the pump being broken or that she had pulled

the hose off with the van. R ather, Respondent told Ms. Wood

that the hose was like that w hen she got there.

17 . When confronted the next morning by Ms. Rios about the

broken hose at the maintenance fuel pump, Respondent finally

admitted that she broke off the hose with the van.

18 . The pump cost $142.00 to repair.

19 . A review of the matter was conducted by the Food

Services Department and the Safe Driver Committee pursuant to

the Board approved Safe Driver Plan. Respondent acknowledged

receipt and/or review of the Safe Driv er Plan on August 23,

2010, as part of the Annual Procedures Review required of all

employees.

2 0 . The Safe Driver Committee met on November 30, 2010,

and December 14, 2010, and found Respondent in violation of Safe

Driver Plan S ection #35 - failure to obey any other driving law,

regulation, or District procedure. The Committee also noted in

its written report that Respondent "was not as truthful (about

the incident) as she could have been."

2 1 . On or about December 17, 2010, the matter was referred

to the District office for further review.

2 2 . Respondent was offered an opportunity for a pre -

determination meeting to discuss the incident. The meeting was

scheduled for January 6, 2011. Respondent received a copy of a

letter dated January 4, 2011, from Heather Martin, Executive

Director of Business, inviting her to the conference. She

signed for receipt of same on January 4, 2011. The letter

included copies of the documentation collected as part of the

DistrictÓs investigation.

2 3. The pre - dete rmination meeting was h eld on January 6,

2011 . Respondent was in attendance. Based upon the evidence

obtained during the investigation/review of the matter and

RespondentÓs statements during the pre - determination meeting,

the Superintendent determined th at there was probable cause to

discipline the Responde nt and that he would recommend

Respondent's termination to the School Board. The

Superintendent advised Respondent of his determination and

recommendation through his designee, Heather Martin, via her

letter to the Respondent dated January 10, 2011.

B. Additional Findings of Fact

24. There is no question that Respondent made a series of

mistakes on November 22, 2010. According to Respondent's

testimony at hearing she failed to report the incident at the

fuel pump because she was scared and she panicked. There is no

evidence in this record to suggest that Respondent intentionally

damaged District property or eng aged in a premeditated plan of

dishonesty.

25. The most serious aspect of Respondent's b ehavior on

November 22, 2010 , was the potential danger she exposed other

District employees to at the fueling station by not disclosing

the broken hose. Again, although this was a serious omission,

by all appearances it was the product of Respondent's pan ic

rather than of deliberate thought.

2 6 . Other than Respondent's lapse of judgment on the day

of the incident, all indications are that Respondent has been a

dependable, loyal, and competent employee. Dating from April

2005, Respondent's job evaluatio n forms reflect satisfactory

performance of her duties, an "accident free" history, and a

willingness and desire to help other employees.

2 7 . There are food service positions at SHS that do not

require employees to drive vehicles.

CONCLUSIONS OF LAW

2 8 . The Division of Administrative Hearings has

j urisdiction over the parties to and the subject matter of this

ca u se. School Board Policies 6.37, 6.39 and the H ernando U nited

S chool W orkers ("HUSW") Collective Bargaining Agreem ent apply to

this case, as d o section s 120.569 and 120.57, Florida Statutes.

2 9 . As Superintendent of School s for Hernando County,

Petitioner has the authority, pursuant to section 1012.27,

F lorida S tatutes , to recommend to the School Board that any

school employee be suspended and /or di smissed from employment.

30 . The School Board has the authority to terminate and/or

suspend support personnel without pay and benefits pursuant to

sections 1012.22(1)(f) and 1012.40(2)(c).

3 1 . As a Food and Nutrition Assistant I, Respondent is a n

"educational s upport employee" as defined by section

1012.40(1)(a) and is a member of the su pport personnel

bargaining unit ( the HUSW ) , and is subject to the terms and

conditions of employment set forth in the collective bargaining

agreement between it a nd the School District.

3 2 . The standard for discipline/suspension/termination of

support personnel is "just cause" pu rsuant to section 1012.40;

School Board Policy 6.37 ; and the HUSW Co llective Bargaining

Agreement.

3 3 . Neither the HUSW contract nor School Board Policy 6.37

defines Ðjust cause.Ñ Similarly, Florida Statute s also fail to

provide an exhaustive definition of "just cause." In the

absence of such specific definition, Petitioner has discretion

(subject to review via a hearing) in setting standards which

subject an employee to discipline and/or termination. See Dietz

v. Lee Cnty . Sch . Bd . , 647 So.2d 217 (Fla. 2nd DCA 1994).

3 4 . T he burden of proof applicable in th i s proceedings is

a preponderance of the evidence. McNeill v. Pinellas Cn ty . Sch .

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

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

§ 120.57(1)(j), F la . S tat .

3 5 . Based upon the undisputed facts of this case, it is

Petitioner Ós position that there is " just ca use " to terminate

R espondent . Specifically, Petitioner asserts Respondent

committed the following School Board Policy 6.37 - Group III

Offenses:

(4) Interfering with the work of other

employees or refusal to perform assigned

work - Respondent failed to disclose the

broken pump to Maintenance employees thereby

preventing them from taking proper

precautions to ensure the safety of all

employees and visitors as well as prevent

any further damage to facilities or

equipment.

(6) Carelessness or negligence in the

handling or control o f School Board property

or the misappropriation of Board p roperty -

Respondent broke the fuel hose after

stepping over it to get into the van to pull

away from the pump and despite having been

advised by her supervisor to seek a ssistance

from Maintenance staff before fueling.

(10) On or off the job conduct which

adversely affects the ability of the

employee to perform his duties and/or the

duties of other employees and/or adversely

affects the e fficient operation of the

school system or any department , division or

area of the School Board - RespondentÓs

carelessness and damage to the fuel pump

disrupted the DistrictÓs operations,

resulted in repairs that had to be performed

for the District by an outside company at a

cost of $1 42.00 and her lack of candor and

truthfulness at the time of the incident has

discredited her with the District.

(11) Lying or falsification of any document

or any other dishonesty connected with the

employeeÓs employment or in any way related

to the op eration of the school system or any

department, division or area of [the] school

system - Respondent failed to disclose her

responsibility for breaking the hose until

she was confronted by the fact that she was

caught on surveillance video as the culpable

party. In addition, she stated to the

Maintenance staff when confronted about the

broken hose that it was Ðlike that when she

got there.Ñ

(12) Violation of a posted or otherwise

known Board or departmental rule, procedure,

order, regulation of any State or county

statute or ordinance which is related to the

employeeÓs employment - Respondent failed to

report the damage to the fuel pump which was

cause d while driving a District vehicle as

required by the DistrictÓs Safe Driver Plan

and the Staff Handbook both of which

Respondent has signed for receipt of and

having read and understood same.

(13) Any fraudulent, criminal or dishonest

act(s) committed acting alone or in

collusion with others, including but not

imited to stealing, embezzlement, extortion,

assault or vandalism, whether committed on

or off the job - Respondent intentionally

mislead other employees into believing

someone else had broken the fuel pump and

failed to disclose the fact that it was even

broken thereby endangering the safety of

othe r employees. (emphasis added).

3 6 . Petitioner also asserts that Respondent is guilty of

violat ing section 35 of the Safe Driver Plan , to wit, "[F] ailure

to obey any other driving law, regulation, or District

procedure . "

3 7 . School Board Policy 6 .37 (5)(a) provides as follows:

(5) Discipline and Discharge

(a) Forms of Discipline

The Superintendent and the Board retain

the right to treat each incident of

employee misconduct or performance

deficiency on an individual basis

without creating a p recedent for other

similar incident cases which may arise

and to determine the appropriate

discipline on a case - by - case basis.

The Board recognizes the following

types of disciplinary action as

progressive in nature:

(1) Verbal warning

(2) Written reprimand

(3) Proba tion

(4) Suspension with pay

(5) Suspension without pay

(6) Demotion

(7) Combination of the above

(8) Discharge

3 8 . Section 6.37 of the School Board P olicy recognizes

three categories of offenses, with Group I comprising the least

serious offenses, and Group III the most s erious. Penalties for

a first offense under Group 3 carry a penalty of "[U]p to

discharge."

3 9 . The facts in this case are largely undisputed and

Petitioner is correct that the above - cited Group III offenses

were committed by Respondent . The issue is w hether RespondentÓs

employment must be terminated as a result of her actions. The

record establishes that Respondent has been a loyal, dependable,

competent food service employee during her many years of service

to the school system . There is no question h er initial act in

breaking the fuel pump was a mistake , and that she should have

immediately alerted the appropriate maintenance personnel of the

accident . H owever, her failure to take appropriate action and

to immediately acknowledge her mistake was th e product of her

fear and panic. While that is not a defense to her actions, it

provides context , a nd is understand able given her frightened

mental state.

40 . As noted above, the School Board has reserved to

itself the ability to impose a hierarchy of p enalties, even for

Group III violations, to be determined on a case - by - case basis.

Given Respondent 's unblemished record prior to the incident at

issue, and lack of culpable intent to commit the violations,

discharge is too extreme a penalty under the cir cumstances.

RECOMMENDATION

B ased upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the School Board enter a Final

Order :

1) Reinstating Respondent to her position as a food

service employee with the restriction she not be required or

permitted to drive School Bo ard vehicles at any time in the

future ;

2) Suspending Respondent without pay for a period of 6 0

days;

3) Requiring Respondent to reimburse the School Board the

$142.00 cost for the repair of the fuel pump.

DONE AND ENTERED this 26th day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 26th day of August , 2011 .

COPIES FURNISHED :

J. Paul Carland, II, Esquire

School Board of Broward Cou nty

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Bryan Blavatt , Superintendent of Schools

919 North Broad Street

Bro oksville, Florida 34601

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.

919 North Broad Street

Brooksville, FL 34601