12-002519TTS Hendry County School Board vs. Jennifer Lynn Robertson Status: Closed Recommended Order on Tuesday, December 18, 2012.

Summary: School Board established "just cause" to terminate Respondent based on poor work performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENDRY COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2519TTS

)

JENNIFER LYNN ROBERTSON , )

)

Respondent . )

)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was held on October 25,

2012 , in LaBelle, Florida , before Thomas P. Crapps, a n

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Robert C. Shearman, Esquire

Henderson,Franklin, Starnes

and Holt, P.A.

1715 Monroe Street

F or t Myers, Florida 33901

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman.

2080 M cGregor Boulevard, Suite 202

F ort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

Whether Petitioner established Ð just cause Ñ to terminate

Respondent's employment as a custodian.

PRELIMINARY STATEMENT

On Jun e 12 2012, the Petitioner, Hendry County School Board

(School Board), voted to terminate its employment of Respondent,

Jennifer Lynn Robertson (Ms. Robertson) , "for willful neglect of

her duties."

On July 10, 2012, Ms. Robertson, through counsel, dispute d

the School Board's allegation and demanded an administrative

hearing. On July 23, 2012, the School Board transmitted

Ms. Robertson's administrative hearing request to DOAH, and the

undersigned was assigned the case. Based on the parties'

responses to an initial scheduling order, the case was set for

September 19, 2012. Following a request for a continuance, the

case was rescheduled for October 25, 2012.

At the October 25, 2012, hearing , the School Board

presented the testimony of Lucinda Kelley (Princ ipal Kelley),

Maria Gonzalez (Ms. Gonzalez), Richard Carter (Mr. Carter), John

O'Ferrell (Mr. O'Ferrell), Ms. Robertson, and Debbie Steelman

(Ms. Steelman). J oint E xhibits numbered 1 through 24 were

received into evidence. Ms. Robertson testified in her own

behalf, and presented the testimony of Crystal Kirtley

(Ms. Kirtley) and Ty Randall Marshall (Deputy Marshall). She

also introduced RespondentÓs E xhibit 1 into evidence.

On November 14, 2012, the two - volume Transcript was filed

with DOAH. On Nove mber 26, 2012, the parties filed p roposed

r ecommended o rders which the undersigned has considered in the

preparation of th is Recommended Order. The parties also

provided the undersigned with a joint pretrial stipulation . The

undersigned has incorporated portions of the pretrial

stipulation into th is Recommended Order.

FINDINGS OF FACT

1. Ms. Robertson, a custodian, began her employment with

the School Board in the 2008. For school years 2008 - 2009 and

2009 - 2010, Ms. Robertson received satisfactory eva luations

concerning her job performance. She was praised by Principal

Kelley as a hard worker and a good addition to the LaBelle High

School custodial staff.

2. In the beginning of the 2010 - 2011 school year, Principal

Kelley and Mr. O'Ferrell, the hea d custodian for LaBelle High

School and Ms. Robertson's direct supervisor, noticed a marked

difference in Ms. Robertson's work performance. Specifically,

Ms. Robertson began taking too many breaks, leaving campus,

taking longer lunch hours, failing to be in her assigned work

areas, and failing to properly clean her assigned rooms.

3. Both Principal Kelley and Mr. O'Ferrell verbally

counseled Ms. Robertson on several occasions about improving her

work, and staying in her assigned work area. Principal Kell ey

credibly testified that she initially provided Ms. Robertson with

verbal consultations, rather than a written reprimand, as a means

to encourage Ms. Robertson. Principal Kelley decided to use

verbal consultations initially because she believed that

Ms . Robertson had been a good employee in the past, and that

Ms. Robertson would correct her behaviors with the verbal

counseling. Similarly, Mr. O'Ferrell credibly testified that he

had spoken to Ms. Robertson four or five times about improving

her work.

4. During the fall of 2010 and spring 2011, rumors

circulated at LaBelle High School that Ms. Robertson had be gun or

was developing an inappropriate relationship with a male student.

The student, T.L., was a 17 - year - old senior, whose classes were

in th e Building and Trade class areas. The Building and Trade

class area was outside of Ms. Robertson's assigned work area ;

h owever, she was spending an inordinate amount of time there . 1 /

5. Principal Kelley and Mr. O'Ferrell became aware of the

rumors concer ning Ms. Robertson and T.L., and asked her about it.

Ms. Robertson stated that the relationship was one of guidance,

rather than inappropriate.

6. On March 10, 2011, Principal Kelley decided to change

Ms. Robertson's work hours. At the time, Ms. Rober tson had

worked the "day shift" which consisted of a 6:00 a.m. to

2:00 p.m. work schedule. Principal Kelley determined to change

Ms. Robertson's work hours to the "night shift" which consisted

of a 2:00 p.m. to 10:00 p.m. work schedule. Principal Kelle y's

reasons for changing Ms. Robertson' s work schedule concerned

meeting the school's need s , and Principal Kelley's desire to

address the rumors around Ms. Robertson and T.L. Principal

Kelley wanted to separate Ms. Robertson and T.L. before a problem

deve loped. Pursuant to the Collective Bargaining Agreement,

Principal Kelley provided Ms. Robertson with a required 21 - day

notice and met with Ms. Robertson. Ms. Robertson expressed that

she was unhappy with the change in her work hours, and that it

would ca use a hardship with her children, ages 17, 16, and 11.

Although unhappy with her re - assignment, Ms. Robertson did not

file a grievance challenging the change. Beginning on March 31,

2011, Ms. Robertson started working the 2:00 p.m. to 10:00 p.m.

shift.

7. That same date, March 31, 2011, Principal Kelley

provided Ms. Robertson with an annual evaluation. Overall,

Principal Kelley found Ms. Robertson's work to be satisfactory,

but indicated that Ms. Robertson's "work attitude" needed

improvement.

8. A fter the change in her work schedule, Ms. Robertson's

work attendance began to deteriorate, as her use of sick leave

increased. Further, Ms. Robertson's work performance

deteriorated.

9. Some time during the summer of 2011, after T.L.

graduated from the high school, Principal Kelley had a "no

trespass" warning served on T.L. The "no trespass" warning was

to keep T.L. off of the campus because he was coming to visit

Ms. Robertson during her work hours.

10. The beginning of the 2011 - 2012 school year did not see

an improvement in Ms. Robertson's work performance.

Mr. O'Ferrell credibly described Ms. Robertson's work performance

as "steady downward." She was leaving the school campus to

smoke, not cleaning her assigned rooms, and her attendance became

"d eplorable" according to Mr. O'Ferrell.

11. The record clearly shows that Ms. Robertson's

attendance and use of sick leave became excessive. Most of her

sick leave was not supported by any medical documentation.

Moreover, many of the dates that Ms. Rober tson called in sick

occurred on Thursdays, Fridays , and Mondays. For example, the

record shows that Ms. Robertson used sick leave on September 29,

30 , and October 3, 2011, for a corresponding long weekend.

Ms. Robertson's explanation at the hearing that the dates

corresponded with her children's medical needs is not credited.

The medical records introduced into evidence by the parties

showed, at best, that Ms. Robertson's children received influenza

vaccinations on October 3, 2011. There is nothing to suggest

that the children's vaccinations required three full work days.

Similarly, the record shows that on the week of October 31, 2011 ,

through November 4, 2011, Ms. Robertson called in sick for what

she described as the "stomach flu." Yet, there were no

corresponding medical records supporting Ms. Robertson's

testimony.

12. After Ms. Robertson's absences i n the week of

October 31, 2011, Principal Kelley provided Ms. Robertson with a

written reprimand, a n special evaluation , and documentation of

Ms. R obertson's absences. The written reprimand dated

November 4, 2011, informed Ms. Robertson that her excessive

absenteeism created a hardship for her co - workers , and was

unacceptable. On November 8, 2011, Ms. Robertson signed that she

received the reprima nd and that she understood the contents. The

fact that Ms. Robertson understood the seriousness of this

written reprimand was corroborated by Ms. Steelman, the union

representative for the Hendry School District support personnel.

13. Ms. Steelman credib ly testified that she was present

when Ms. Robertson received the written reprimand from Principal

Kelley, and that Ms. Robertson understood the concerns outlined

in the reprimand.

14. The special evaluation, dated November 8, 2011, showed

that Ms. Robert son needed to improve her quantity of work, her

dependability, attendance/punctuality, and work attitude.

15. Following the November 8, 2011, special evaluation,

Ms. Robertson's attendance marginally improved, but the quality

and quantity of her perfor mance decreased.

16. Ms. Robertson's work in cleaning her assigned areas was

inadequate. Mr. Carter, a custodian who worked the night shift

with Ms. Robertson, credibly testified that other custodians were

required to do Ms. Robertson's work. Ms. Robert son would be

visiting friends or family members during the work times or

taking smoking breaks. Similarly, Mr. O'Ferrell credibly

testified that Ms. Robertson was not "dependable" and failed to

properly clean her assigned area. Ms. Robertson's failure to

properly clean restrooms and the library led to complaints, and a

second written reprimand dated December 6, 2011. The December 6,

2011, reprimand was signed by Ms. Robertson, and Principal

Kelley. Again, the testimony showed that Ms. Robertson' s union

representative was present when the reprimand was given.

17. Unfortunately, after the December 6, 2011 , reprimand,

Ms. Robertson's work performance did not improve. The record

shows that Ms. Robertson received two more written evaluations

from Principa l Kelley , one February 29, 2012 , and the other

April 1, 2012 . They documented that Ms. Robertson's work

continued to be unsatisfactory. In the comments for the April 1,

2012, evaluation, Principal Kelley noted that Ms. Robertson's

work had not improved and that issues concerning her work

remained unresolved. O n the checklist for each evaluation,

Principal Kelley indicated that Ms. Robertson needed to improve

the quantity of her work, quality of her work, dependability,

attendance/punctuality, and work a ttitude. Mr. O'Ferrell and co -

worker , Ms. Gonzalez , c redibly described Ms. Robertson's

continued work performance problems.

18. Although Mr. O'Ferrell did not work on the night shift

with Ms. Robertson, he would inspect the areas and rooms that

Ms. Robe rtson had been assigned to clean. Mr. O'Ferrell credibly

testified that Ms. Robertson had not properly cleaned the rooms.

Similarly, Ms. Gonzalez, a custodian on the day shift, credibly

testified that when she got to work in the morning she would

receive teachers' complaints, and that she had to clean and pick

up trash from rooms that Ms. Robertson should have cleaned the

night before.

19. As a result of Ms. Robertson's failure to do her job,

teachers complained about their rooms not being cleaned, and

other custodial staff had to clean the rooms assigned to

Ms. Robertson. Furthermore, Mr. O'Ferrell described that

Ms. Robertson's poor work resulted in morale problems with some

of the custodial staff, who resented having to do

Ms. Robertson's work.

20. In the April 1, 2012, evaluation, Principal Kelley

checked a box indicating that Ms. Robertson should continue on

probationary status. Ms. Robertson acknowledged receipt of the

document on April 9, 2012, and that she understood the

evaluation.

21. From April 25, 2012 , through May 8, 2012, the record

shows that Ms. Robertson was on leave for a worker's compensation

injury. Medical records introduced into evidence show that

Ms. Robertson reported to a health care provider that on

March 28, 2012, sh e had been "pushing a vacuum cleaner at work

and felt something pop around her lumbar spine." Ms. Robertson

reported that she was experiencing lower back and hip pain. The

medical records show that she received physical therapy and was

released to return to work without limitation on May 9, 2012.

22. Ms. Robertson returned to work on May 9, 2012.

23. On May 18, 2012, Principal Kelley informed

Ms. Robertson that she was being suspended with pay, and that

Principal Kelley would recommend to the School B oard that

Ms. Robertson's employment be terminated. At the June 12, 2012,

meeting , the School Board terminated Ms. Robertson's employment.

24. There was no credible evidence that the School Board or

Principal Kelley decided to terminate Ms. Robertson's employment

based on Ms. Robertson's leave of absence based on the worker's

compensation injury leave of absence .

25 . Ms. Robertson's explanation , that her work difficulties

were tied to Principal Kelley changing Ms. Robertson's work

hours , is not credible . Ms. Robertson testified that some of her

absences occurred because her children Ós doctor Ós appointments

could only be made after 3:00 p.m., when she was at work. This

explanation was not credible for two reasons: first, one would

expect that a doctor' s appointment could be scheduled in a

morning; and , second , there was scant medical record evidence to

support her claim that her absences were tied to doctor

appointments. Ms. Robertson also testified that the night shift

caused her hardship in that she could not properly supervise her

17 - year - old son, who was getting into trouble with the law. It

was undisputed that her son was having difficulties, and had even

been removed from the high school. Those difficulties, however,

cannot explain Ms. Robertson 's poor work performance when she was

at work. The credible testimony from Mr. O'Ferrell, her

supervisor, and two co - workers showed that Ms. Robertson did not

properly clean the classrooms and areas assigned to her because

she was taking too many breaks a nd not working. Sadly, the

evidence presented showed that Ms. Robertson's difficulties stem

not from her work hours, but from her poor choices.

CONCLUSIONS OF LAW

26 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. § 120.57(1), Fla. Stat. 2/

27 . The School Board has the authority to operate, control

and supervise the public schools in its district. See Art. IX,

§ 4(b), Fla. Const. This authority includes the termination or

suspension of educational support person nel. § 1012.27, Fla.

Stat. State law permits school districts to adopt rules

governing personnel matters. § 1012.23(1), Fla. Stat. The law

provides that a school district may terminate a person's

employment "for reasons stated in the collective bargaini ng

agreement, or in district school board rule in cases where a

collective bargaining agreement does not exist[.]"

§ 1012.40(2)(b), Fla. Stat.

28 . The School Board here entered into a Collective

Bargaining Agreement, titled Hendry Educational Support

Personnel Agreement (Collective Bargaining Agreement). The

Collective Bargaining Agreement governs educational support

personnel, like custodians, and provides that these employees

can only be terminated for "just cause." § 1012.40(2)(b). The

term "just cause" is not defined in the Collective Bargaining

Agreement. Further, the School Board does not have a policy

specifically defining "just cause." However, School Board

Policy 218, concerning suspension and dismissal of non -

instructional staff, provides that an employee may be suspended

or dismissed for excessive absenteeism or failure to perform

assigned duties in a satisfactory manner. Consequently, this

School Board Policy is instructive for determining what facts

constitute "just cause" for terminat ion of a non - instructional

employee, like a custodian. Finally, the law is clear that the

School Board has the burden of proving by the preponderance of

the evidence that "just cause" exists. McNeill v. Pinellas Cty

Sch . Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996).

29 . Applying the rules of law to the facts here, the

undersigned finds that the School Board has shown by a

preponderance of the evidence that Ms. Robertson failed to

perform her assigned duties in a satisfactory manner. As set out

in the factua l findings, Ms. Robertson repeatedly failed to

perform her custodial work in a satisfactory manner. The facts

showed that Ms. Robertson was counseled by Mr. O'Ferrell and

Principal Kelley to improve her work performance both verbally

and in writing. Unfo rtunately, Ms. Robertson's work performance

continued to deteriorate with her leaving the school campus for

smoke breaks, for failing to complete her work, and for abusing

her sick leave. Although Ms. Robertson's absenteeism did improve

after the November 8, 2011, written reprimand, the testimony

clearly showed that Ms. Robertson's work performance both in

quantity and quality was poor. Clearly, she failed to perform

her assigned tasks in a satisfactory manner, as shown by the

testimony and job performanc e evaluations. Therefore, the

undersigned finds that the School Board proved by the

preponderance of the evidence that "just cause" exists to

terminate Ms. Robertson's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board terminate

Ms. Robertson's employment.

DONE AND ENT ERED this 18th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Divi sion 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 18th day of Dece mber , 2012 .

ENDNOTES

1/ Ms. Robertson explained that T.L. was friends with her older

son, and that T.L. had helped her with different custodian

tasks. As a result, T.L. spent a lot of time with Ms.

Robertson. Sometime in 2010 or 2011, Ms. Robertson's husband

left the marital home, and in May 2011, T.L. moved into the

home. T.L. graduated from LaBelle High School in June 2011.

Although T.L. moved into Ms. Robertson's home in May 2011,

Ms. Robertson testified that she and T.L. did not develop an

inti mate relationship until May 2012. At the time of the

hearing, Ms. Robertson and T.L. continue to cohabit .

2/ References to Florida Statutes shall be the 2012 version

unless otherwise indicated .

COPIES FURNISHED :

Robert J. Coleman, Esquire

Coleman an d Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

Robert C. Shearman, Esquire

Henderson, Franklin, Starnes and Holt, P.A.

1715 Monroe Street

Fort Myers, Florida 33901

Paul K. Puletti, Superintendent

Hendry Coun ty School Board

25 East Hickpochee Avenue

Post Office Box 1980

Labelle, Florida 33975 - 1980

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e 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.