15-001200 Hernando County School Board vs. Wilda Maymi Status: Closed Recommended Order on Monday, July 13, 2015.

Summary: By violating a School Board policy in numerous respects, termination of Respondent's employment as a custodian was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 1 5 - 1200

WILDA MAYMI,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Administrative Law Jud ge of the Division

of Administrative Hearings (DOAH) , conducted the final hearing

in this matter on May 14, 2015, in Brooksville, Florida.

APPEARANCES

For Petitioner : Thomas M. Gonzalez, Esquire

Nathan James Paulich, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Post Office Box 639

Tampa , Florida 3 3601 - 0639

For Respondent : Wilda Maymi, pro se

5603 James Street

New Port Richey, Florida 34652 - 3718

STATEMENT OF THE ISSUE

The issue is whether Respondent , a non - instructional

employee of the School Board , is guilty of violating School

Board Policy 6.37, and if so, whether termination of her

empl oyment is an appropriate sanction .

PRELIMINARY STATEMENT

After conducting an investigation of allegations of

inappropriate conduct by Respondent, a non - instructional

employee, the Superintende nt recommended that she be terminated

from employment effective February 4, 2015 , for violating School

Board Policy 6.37. R espondent timely requested a hearing, and

the matter was referred by the School Board to DOAH with a

request that a formal hearing be conducted.

At the final hearing, Petitioner presented the test imony of

seven witnesses . Petitioner's Exhibits 1 through 19 were

accepted in evidence. Respondent testified on her own behalf .

A one - volume T ra nscript of the hearing has been prepared.

P roposed r ecommended o rders (PROs) were filed by the parties ,

and t hey have been considered in the preparation of this

Recommended Order. 1/

FINDINGS OF FACT

A. Background

1. The School Board is responsible for hiring, overseeing,

and terminating employees in the school district.

2. Respondent is a non - instructional (su pport) employee at

Explorer K - 8 School (Explorer) in Spring Hill. S he began

working at Explorer as a Custodian I in school year 2014 - 2015

and was assigned the night shift , 3:45 p.m. to 11:30 p.m .

Before coming to Explorer, Respondent was a custodian at

H ernando High School in Brooksville, but left to fill a vacancy

at Explorer, which was closer to her home. She was hired at the

recommendation of Homer Lawson, an African American male and

head custodian at Explorer.

3. Barbara Kidder is principal at Expl orer and has

ultimate supervisory responsibility for all employees at the

school, including the custodial staff. Lillian DiTucci is the

assistant principal and also has supervisory duties over the

custodial staff.

4. Custodians at Explorer are assigned t o either the day

or night shift. Lawson, as head custodian, is responsible for

supervising all custodians, regardless of the shift assignment.

Eric Harris is the night custodian supervisor and is next in the

chain of command below Lawson. Although Lawso n works the day

shift, he is present for approximately one hour of the night

shift and meets with Harris prior to the start of that shift to

go over various issues, including performance of custodial

staff. Lawson is the first person to arrive at Explorer the

next morning and conducts walk - throughs to ensure the areas have

been cleaned by the night shift.

5. As head custodian, Lawson is also in charge of

custodial supplies at Explorer. If a custodian is out of

supplies, Lawson requires the custodian to write on the board

the supplies he or she needs for the next day and then he

processes the request. The supplies usage is documented in a

log book, with notation of the custodian's name and the date the

supplies were issued. If the documentation shows o ne custodian

is going through more supplies than the others, Lawson inquires

of the custodian. Because of strict budgetary concerns, Lawson

is vigilant in tracking the use of supplies. He does not deny

necessary supplies, but he will give direction to be more

responsible.

6 . The School Board has adopted Policy 6.37, which

establishes standards for the separation, discipline, and

discharge of non - instructional employees , including Respondent.

Paragraph (5)(d) recognizes three categories of offenses and a

guide for recommended penalties. Relevant to this proceeding

are the offenses and recommended penalties for Groups II and

III. The penalty for Group II offenses ranges from a written

reprimand for the first offense to discharge for a third

offense. Gro up III offenses are the most serious and carry a

recommended penalty of "up to discharge" for the first

violation.

7 . The School Board has charged Respondent with violating

two Group II offenses , referred to as items in the policy :

Item 7 - Creating or co ntributing to unsafe, unsanitary or

poor housekeeping conditions; and

Item 13 - Incompetency or inefficiency in the performance

of duties.

8 . Respondent is also charged with violating five Group

III offenses:

Item 1 - Insubordination;

Item 4 - Interferin g with the work of other employees or

refusal to perform assigned task;

Item 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 employee 's

employment;

Item 14 - Improper racial or sexual comments, harassment or

acts; and

Item 23 - Refusal to work overtime or hours as assigned.

B. The Inappropriate Conduct Which Led to the Charges

9 . From the very beginning of her employment with

Explore r , Respondent exhibited numerous performance issues,

including the complete failure to perform assigned tasks, which

resulted in a high volume of complaints from teachers and staff

throughout the fall term and required multiple meetin g s with,

and direction from, supervisors.

10 . On September 4, 2014, or a few days after she began

work ing at the school , Harris met with Respondent regarding her

cell phone usage during work hours. Harris witnessed and

received complaints from other school employees that Re spondent

was on her cell phone "a lot," which resulted in less

productivity and caused a distraction because she often kept her

phone on speakerphone. Respondent responded that she would shut

it off and use it only for emergencies.

1 1 . Respondent was ass igned to clean the classroom of

Michele Hann, an Exceptional Student Education (ESE) teacher at

Explorer. On Thursday, September 18, 2014, Hann emailed Lawson

and stated that her classroom had not been properly cleaned in a

manner that was acceptable for ESE students, some of whom had

medical needs requiring a very clean environment . She also

noted that food from the day before was still on the floor, the

paper towels by the sink had not been replaced since the

previous Friday, and her Terminator bottle ( containing a

disinfectant) was empty. Harris was given a copy of Hann's

email and discussed the se co mplaints with Respondent.

1 2 . Among other responsibilities, Respondent was required

to restock pa per towels in the classrooms that she cleaned . On

Sep tem ber 19, Lori Linauer, a teacher at Explorer, emailed

Lawson that the bathroom in her classroom had been out of paper

towels since the day before.

1 3 . Based on these complaints, Respondent was assigned a

new area that required less responsibility, but th e complaints

regarding her performance deficiencies continued. One of her

new assignments was cleaning the school's locker rooms. A few

days later, Harr is received a complaint that the locker rooms

were not being cleaned . It takes "at least a half hour [ to

clean ] each locker room to do a good job," and the night shift

ends at 11:30 p.m. Harris observed that on September 22 and 23,

Respondent did not begin cleaning the locker rooms until around

10:45 p.m. and 11:10 p.m., respectively. Th ese o bservation s

enabled Harris to confirm that Respondent was doing her work

"quick at the end of the night," without properly cleaning the

rooms. Harris discussed this concern with Respondent and even

assisted her with cleaning the locker rooms on several

occasions.

1 4 . Custodians are instructed to place their carts in the

custodial closet at the end of their shifts. On September 25,

Harris met with Respondent after she continued to leave her cart

and radio in the recreation hall at the end of her shift.

Respondent g ave no credible reason why she ignored this

requirement.

1 5 . On September 29 , Harris received another complaint

that the locker rooms were not properly cleaned. When he

confronted Respondent about this complaint , she explained that

other rooms were messy and she had " meetings ," implying that she

had insufficient time to finish her work . Because Respondent

had still not secured her assigned badge that would allow her

access to th e locke r room s (once they were electronically locked

in the evening ) , H arris had to unlock the boys ' locker room at

11:30 p.m. and then retrieve her cleaning materials so that she

could finish the job.

1 6 . On October 21, Harris checked the boys' gang bathroom

(a multi - use bathroom with six or more stalls) and found the

toilet base s filthy and not wiped down. Harris met with

Respondent to discuss th is concern. The next day he noticed

that Respondent failed to properly clean the toilets and mirrors

in the girls' gang bathroom. Harris once again met with

Respondent to discuss these concerns. Respondent told Harris

that she needed a brush with a stick on it to make the job

easier. Harris told her that she should clean the toilets the

way everyone else did, by bending down and wiping them clean.

1 7 . On October 24, Respondent teleph oned the principal's

secretary at 4:15 p.m. and said she would be late because she

had to pick up her employee's badge. However, Respondent did

not pick up her badge that day.

1 8 . On October 28, Joanne Yarin, a Media Specialist at the

school, informed Lawson by email that the women's restroom in

the media center ran out of paper towels the afternoon before .

Yarin had asked Respondent to refill the paper towels, but

Respondent told her she wasn't sure if there were any more in

the supply room. When the paper towels were not re stocked by

the following morning, Yarin contacted another custodian who

promptly complied with her request.

1 9 . On October 29, Karen Federico, a music teacher at

Explorer, complained to Lawson by email that Respondent failed

to v acuum her classroom or take out the trash the night before.

She also complained that t he concession area women's bath room

had no paper towels.

20 . On November 3, Tammy Ashurst, a behavior specialist at

the school, emailed Lawson regarding her concerns about

Respondent's performance. A copy of the email was forwarded to

Kidder and Harris. Ashurst pointed out that Respondent's

failure to sweep or vacuum the floors was a recurring problem .

When she entered her classroom that morning , Ashurst found a

lar ge section of the floor d irty and sticky and she had to ask

another custodian to clean it. Ashurst asked Lawson to speak

with Respo n dent regarding this issue.

2 1 . On November 5, Respondent telephoned the principal's

secretary to say if she was not at w ork by 5:00 p.m. that day

she was not coming in. She did not show up for work. Whether

Respondent turned in a leave form for that day is not of record.

2 2 . Beside the performance issues, Respondent did not

interact well with other staff at Explorer. On November 7 , she

was involved in a verbal altercation with another custodian ,

Haley Ca r son, whose car (with the Carson baby inside) was nearly

struck by Respondent 's car the prior evening when Respondent

sped out of the parking lot at the end of their shif ts.

Respondent also had a verbal altercation with a nother co - worker

in the parking lot after parking at an angle and into the

adjacent parking space used by the co - worker . Respondent told

the co - worker that she (Respondent) always parked like that and

to mo ve her car if she didn't like it.

2 3 . On November 7 , Harris received a complaint from

another school employee, Mr. Baroudi, whose position is unknown,

that the garbage in his room had not been emptied on two

occasions and food sat in the trash can for days.

2 4 . On November 18, Juliet Figueroa, another night shift

custodian who had just started work the day be f ore, was given

the rundown on her job (a " 411 " ) by Respondent. During the

conversation Respondent asked Figueroa if "you know the manager

Hom er [Lawson] ? I don't call him that I call him nigger."

During the same conversation, Respondent referred to a former

co - worker, Mundreanu, who is Romanian, as a " co mm unist . " She

also asked Figueroa if she was a Puerto Rican, since Respondent

thought she looked like a Mexican. Figueroa was "taken aback"

by these comments and reported the incident to Kidder . At

hearing, Respondent claimed that Figueroa misunderstood her and

that she actually used the word "negro," which means black in

Spanish , and not th e word "nigger . " However, Figueroa

understands Spanish and knows the difference between "nigger"

and "negro . " Respondent's assertion that she did not use this

language has not been accepted.

2 5 . On or about N ovember 19 , during his morning walk -

through , Lawson observed feces in the stalls and soap scum on

the walls of the girls' gang bathroom near the school cafeteria

that should have been cleaned by Respondent. Lawson spoke with

Harris and told him to direct Respondent to take care of it.

Harris dire cted Respondent to clean the area , but she failed to

comply with his instructions . Lawson then informed DiTucci.

2 6 . On November 20, DiTucci met with Respondent to discuss

these latest performance deficiencies. Respondent refused to

attend the meeting u nless Lawson was not present, claiming she

did not consider him to be her supervisor and he had

" disrespected " her at work.

2 7 . At the meeting, Respondent argued the substance was

chocolate and not feces, but the areas should have been cleaned

regardless of the substance. By then, DiTucci had c hecked it

out and confirmed Lawson's initial findings. Respondent also

contended that she was not given sufficient supplies to finish

her work , even though she sometimes used three times the amount

of supplies as o ther custodians . Finally, s he claimed that

Lawson had accused he r of stealing supplies but there is no

credible evidence to support this assertion. The meeting ended

with Respondent threatening to hire an attorney to respond to

the charge that she was st ealing supplies.

2 8 . On November 21, Harris documented that Maggie, another

school custodian, witnessed Respondent's cart not moving for

more than an hour earlier in the day. Each room typically takes

15 to 20 minutes to clean, and the cart is parked out side the

room for easy access. Harris testified that this may have

explained why Respondent's areas were not being properly

cleaned.

2 9 . The same day, without seeking permission, Respondent

told Harris she was leaving early , saying she "forgot to punch

o ut for lunch goodnight." Custodians are required to punch out

for " lunch " from 7:30 p.m. to 8:15 p.m., a paid break. There is

no option available to employees to work through lunch period

and leave work earlier at the end of the shift.

30 . As of Novembe r 25, Respondent had still not cleaned

the feces off the girls' bathroom wall. As a result, Kidder

asked Harris to again direct Respondent to clean the girls'

bathroom. She also asked Harris to remind Respondent to turn in

a leave form for November 21, a nd to explain that she must punch

in and out for lunch.

3 1 . Respondent finally complied with the directive to

clean the girls' bathroom wall after DiTucci and Harris

accompanied her to the bathroom , showed her the feces , and

directed her to clean the ar ea .

3 2 . On December 1, Stacy Tarbox, a paraprofessional at the

school, emailed Lawson and Harris regarding Respondent's failure

to clean the girl's locker room. Tarbox noted that it was

dirty, the lockers had a thick layer of dust on top, the walls

had n ot been cleaned, and the floors had not been pressure

washed for some time. This was the same locker room Harris had

previously talked to Respondent about in September.

3 3 . On December 2 , Figueroa filed a bullying and

harassment complaint against Respond ent based on the November 18

incident in which Respondent made disparaging remarks about

Lawson and Mundreanu . The essence of the complaint was that

these comments created a hostile working environment.

3 4 . Th at afternoon, Kidder conducted a conference w ith

DiTucci, Lawson, Respondent, and her union representative to

discuss the bullying complaint and allegations that Respondent's

conduct constituted a violation of three Group III offenses

(items 7, 14, and 23) and one Group II offense (item 7) .

3 5 . In response to the se charges, Respondent initially

said she could not remember using any racial term s when speaking

with Figueroa but later labeled Figueroa as a liar and

threatened to sue her . She claimed that she did not know what a

"commie" meant and aga in called Figueroa a liar. She also said

s he never saw feces on the bathroom wall . If that was the case,

she should have asked Harris where it was rather than doing

nothing. In response to the charge that she refused to meet

with her supervisor, Lawson, she claimed that he had accused her

of stealing supplies, disrespected her, and hindered her in

performing her work. Finally, she contended that before she

left work on November 21 (without punching out for lunch) , she

told Harris that she was not feelin g well. At the conclusion of

the meeting, Kidder twice asked Respondent if she had a ny

further response to the allegations and what it would take to

change things. Respondent refused to respond. Respondent also

declined to say if she intended to return to work at her

assigned time and perform her duties.

3 6 . Kidder ultimately d etermined on December 18 that the

bullying and harassment complaint was unfounded since it was an

isolated incident , but concluded that Respondent's use of the

offensive languag e was a violation of item 14 in Group III,

which prohibits the use of improper racial comments.

3 7 . Beside the performance issues, Respondent's behavior

at school offended other custodians. According to one co -

worker, Respondent made the work environme nt feel "hostile" and

"tense." There was testimony that co - workers had confrontations

with Respondent about her work ethic and that Respondent gave a

minimal effort to complete tasks . Also, there were nights when

co - workers had to help her complete her a ssignments. Finally,

the record shows that Respondent was always complaining about

work and how she did not like her job. In short, there was a

"bad atmosphere" at school among the custodians.

3 8 . Given the myriad of performance deficiencies, Lawson

rec ommended to Kidder that Respondent be terminated , as her

performance had steadily gone "downhill . " Harris agreed with

this assessment and pointed out that when compared with other

custodians, Respondent ' s job performance was " poor to fair. "

Notably, t he number of complaints about Respondent far exceeded

those received for any other custodian.

3 9 . Kidder decided to make a recommendation at the school

level to terminate Respondent. Her recommendation was based on

Respondent ' s gross insubordination, a fail ure to perform

assigned tasks, and violations of policy 6.37. This

recommendation was supported by the fact that there were

numerous emails and documents from teachers and staff outlining

Respondent ' s issues as well as a series of meeting s to address

the concerns , none of which resulted in an improvement in

Respondent's performance.

40 . In accordance with school protocol, a pre -

determination meeting was held by Kidder on December 10, 2014 ,

for the purpose of allowing Respondent to respond to not only

the charges discussed at the December 2 meeting, but all

offenses that had occurred since September . Respondent attended

the meeting with a union representative. During the meeting,

s he refused to take responsibility for her actions and offered

only excuses. She was argumentative with School staff and her

union representative. Based on her lack of remorse and caustic

attitude towards supervisors and co - workers, Ki dder determined

that termination was the appropriate action.

4 1 . On January 7, 2015, the Super intendent recommended

that Respondent should b e terminated , and p ending final action

by the School Board , she should be suspended, with pay . A fter

Respondent filed a letter appealing th is proposed action, t he

Superintendent recommended that the School Boa rd suspend

Respondent, without pay and benefits , pending an administrative

appeal to DOAH. Th e recommendation was accepted by the School

Board and the matter was referred to DOAH.

42. At hearing, Respondent failed to present any credible

evidence to rebu t the charges or the evidence presented. She

simply offered excuses like Lawson was difficult to work with,

she was assigned a difficult area to clean due to high use, her

co - workers did not help her clean, and she did not get

sufficient supplies. While a former custodian testified that

she also had problems getting sufficient supplies from Harris,

neither spoke directly with Lawson to remedy this situation .

Moreover , the evidence shows that Respondent used far more

supplies than necessary and far more than other custodians.

C ONCLUSIONS OF LAW

4 3 . Because t he Board seeks to terminate Respondent's

empl o yment , it bears the burden of proof and must prove the

allegations by a preponderance of the evidence . See, e.g. ,

McNeill v. Pinellas Cnty. Sch. Bd. , 67 8 So. 2d 476, 477 (Fla. 2d

DCA 1996) ; § 120.57(1)(j), Fla. Stat.

4 4 . As a member of the support staff, Respondent may be

terminated from employment for the " reasons stated . . . in [a]

district school board rule ." § 1012. 40 ( 2 )( b ), Fl a. Stat.

( 2014). Her e, the School Board has adopted policy 6.37, which

establishes the grounds upon which a custodian may be

terminated.

45. Respondent is charged with violating two Group II

offenses (items 7 and 13) and five Group III offenses (items 1,

4, 12, 14, and 23). The policy authorizes the School Board to

discharge (terminate) a support employee for the first violation

of a Group III offense .

46. By making an inappropriate racial comment when

referring to Lawson, an African American male, Respondent

violated item 14 in Group III , which prohibits the use of

improper racial comments.

47. By repeated acts of insubordination regarding her

assigned duties, and failing to correct these performance

deficiencies after being given multiple direction s by her

supervisors, R espondent has violated item 1 of Group III ,

insubordination . Especially egregious was her outright refusal

to clean the feces off the girls ' gang bathroom wall for five

days after receiving repeated instructions to do so. Equally

egregious was her refusa l to recognize Lawson as her supervisor,

refus al to talk to him, and refus al to participate in a meeting

if he was present.

48. By failing to perform her assigned duties and

exhibiting continued poor performance over the course of her

employment, Respon dent violated items 1 and 4 of Group III and

items 7 and 13 of Group II. Such conduct constitutes

insubordination (item 1) , refusing t o perform assigned work

(item 4), creating unsanitary or poor housekeeping conditions

(item 7), and exhibiting incompeten cy or inefficiency in the

performance of her duties (item 13).

49. By failing to work assigned hours, Respondent has

violated items 12 and 23 of Group III , which require that

employees comply with school work rules and regulations and work

all hours as assigned.

50 . Had th e evidence in this case established only a few

isolated violations, the undersigned would consider the

imposition of a penalty less than termination . Here, however,

by a preponderance of the evidence, the School Board has

established multiple and repeated violations of school policy

during the fall term , job performance that steadily declined,

and a lack of remorse or responsibility by Respondent . Th us,

the short answer to the issues raised by this appeal is that

Respondent violated Po licy 6.37 in numerous respects, and

termination of her employment is the appropriate sanction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Hernando County School Board enter a

final order term inating Respondent 's employment for violating

the following offenses in School Board Policy 6.37 : items 7 and

13 in Group II and items 1, 4, 12, 14, and 23 in Group III .

DONE AND ENTERED this 13th day of Ju ly , 201 5 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

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 13th day of J u ly , 201 5 .

ENDNOTE

1/ Respondent filed a one - page PRO in which she characterized the

case as nothing more than a "he said she said" affair . She asks

that she be reinstated as a custodian, transferred to ano ther

school, placed on probation, and given a face - to - face meeting

with her new supervisor.

COPIES FURNISHED:

Dr. Lori Romano , Superintendent

School District of Hernando County

919 North Broad Street

Brooksville, F lorida 34601 - 2397

(eServed)

Thomas M. Gonzalez, Esquire

Thompson, Sizemore, Gon z alez

& Hearing, P.A.

Post Office Box 639

Tampa , Florida 33601 - 0639

(eServed)

Dennis J. Alfonso, Esquire

McClain, Alfonso & Meeker, P.A.

Post Office Box 4

Dade City , Florida 33526 - 0004

(eServed)

Wilda Maymi

5 603 James Street

New Port Richey, Florida 34652 - 3718

(eServed)

Matthew H. Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.