15-001686 Hernando County School Board vs. Kimberly Rosario Status: Closed Recommended Order on Friday, July 17, 2015.

Summary: School Board proved by a preponderance of the evidence just cause to terminate Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 1686

KIMBERLY ROSARIO ,

Respondent.

______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

June 9 , 2015, in Tallahassee, Florida, before James H. Peterson,

III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Thomas M. Gonzalez, Esquire

Nathan Paulich, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether there is just cause to terminate the employment of

Respondent, Kimberly Rosario (Respondent) , as a n employee with

the Hernando County School Board (Petitioner or School Board) .

PRELIMINARY STATEMENT

By letter dated February 1 9 , 201 5 , the Superintendent of

Hernando County School District notified Respondent that s he

would recommend to the School Board that Respondent be

terminated from her employment with the School Board, and that

the recommendation would be placed on the School Board Ós agenda

for March 17, 2015. The letter further advised Respondent that

the recommendation was based upon Respondent 's excessive absence

and absence without authority. The letter also informed

R espondent of her right to appeal the recommendation of

termination within 15 days from receipt of the letter.

Following her receipt of the SuperintendentÓs letter ,

Respondent timely filed a reques t for a hearing contesting the

re commendation . On March 2, 2015, Hernando County School

District administrator Heather Martin wrote to Respondent and

advised that , because Respondent filed a letter contesting the

recommended termination, Ð[t] he SuperintendentÓs recommendation

for termination will be revised to a recommendation for

suspension without pay effective March 18, 2015[,]Ñ to be

presented to the School Board at their regular meeting scheduled

for March 17, 2015. The March 2, 2015, letter further informed

Respondent that the matter would be r eferred to the Division of

Administrative Hearings (DOAH) for a hearing and that Ð[t]he

suspension without pay will continue until the conclusion of the

DOAH process and final employment action is taken by the School

Board.Ñ

On April 23, 2010, counsel for the School Board forwarded

Respondent Ós request for a hearing to the Division of

Administrative Hearings for the assignment of an administrative

law judge to conduct an administrative hearing.

At the administrative hearing held June 10, 2015 , the

School Board acknowledged that it had the burden in this case to

show , by a prep onderance of the evidence, just cause to justify

the termination of Respondent Ós employment. The School Board

presented the testimony of J.D. Floyd K - 8 Ós school principal,

Rick Markf ord ; School District administrator, Heather Martin;

and School District Risk and Benefits Specialist, Awilda

Rodriguez - Fonte. The School Board introduced 26 exhibits

received into evidence as ExhibitÓs P - 1 through P - 26 .

Respondent did not show up to the final hearing, and therefore,

did not participate.

The proceedings were recorded and a t ranscript was ordered.

The parties were given 10 days from the filing of the t ranscrip t

within which to submit their p roposed recommended o rde rs. The

one - volume Transcript was filed on July 6, 2015 , and the School

Board timely filed its Proposed Recommended Order which was

considered in the preparation of this Recommended Order.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The School Board is the duly authorized entity

responsible for the operation, control, and supervision of all

public schools, grades K through 12, in Hernando County,

Florida, and for otherwise provi ding public education to school -

aged children i n the county. Art. IX, § 4(b), Fla. Const.;

§ 1001.32, Fla. Stat. 1/

2 . Rick Markford is the principal at J.D. Floyd K - 8 (J.D.

Floyd), a school in the PetitionerÓs school district. As

principal, he has ultimate supervisory authority over all staff

members at the school , including custodians .

3. In December 2013 , Mr. Markford hired Respondent to

serve as a Custodian 1 to work the night shift at J.D. Floyd .

4 . Shortly after starting her employment, RespondentÓs

excessive absenteeism rose to a leve l where she was taking

impermissible leave without pay. As a result, Mr. Markford

contacted the School BoardÓs h uman r esources department for

guidance on how to proceed.

5 . The School Board has enacted Policy 6.37 to provide the

grounds for termination for all educational support and non -

certified instructional personnel in its school district. Under

Policy 6.37, Group III offenses warrant termination for a first -

time violation. Respondent was specifically charged with

violating Policy 6.37 Group III offenses Ð(5) Excessive

absenteeism or excessive tardinessÑ and Ð(8) Absence from duty

without authority, including refusal to report to duty at any

time as directed.Ñ

6 . Although the Petitioner can proceed directly to

termination for a first - time Group I II offense, it utilizes a

five - step progressive discipline process for excessive

absenteeism and absence from duty without authority . The first

step is a coaching session with the employee. If the issue

continues, the second step is a corrective action p lan. The

third step is a formal conference with an employee conference

report placed in the employeeÓs file. Step four is a letter of

reprimand. And the fifth step is a referral to Human Resources

for further action, up to and including terminati on.

7. In accordance with School Board p olicy, because of

RespondentÓs excessive absences, Mr. Markford initiated the

five - step process described above.

8 . Step 1 occurred on March 7, 2014, when Mr. Markford

held a coaching session with Respondent to discuss her absence s

without pay. She was specifically warned that any further

unpaid absences would result in a second meeting and a

corrective action plan.

9. On April 17, 2014, Mr. Markford met with Respondent to

address her excessive absenteeism and issue a corrective action

plan in accordance with Step 2 . As part of the corrective

action plan, Respondent was informed that all future absences

for the 2013 - 14 school year would require a doctorÓs note and

she would need to directly contact Mr. Markford .

10. Despite the coaching, RespondentÓs absences without

pay continued, requiring Mr. Markford to initiate S tep 3 in a

June 23, 2014 , meeting with Respondent . The employee conference

report reflects that Respondent was absent without pay from

May 29, 2014, through June 16, 2014.

11 . PetitionerÓs fiscal year runs from July 1 to June 30 ,

each year . Although Respondent had no entitlement to continued

employment beyond June 30, 2014, Mr. Markford decided to

reappoint her for the 2014 - 15 school year to give her a second

chance. Because it was a new school year, any further issues

with absenteeism would start at S tep 1 of the five - step process

rather than continuing directly to S tep 4.

12 . On July 14, 2014, shortly after the start of the new

school year, Mr. Ma rkford had to meet with Respondent to

initiate S tep 1 in the process due to her taking leave without

pay on July 2 , 3, and 9 , 2014 . In the corresponding coaching -

session note, Respondent was issued a corrective action plan.

Respondent Ós impermissible absences continued.

13 . On July 23, 2014, Mr. Markford met with Respondent to

discuss a corrective action plan related to her continued

excessive absenteeism, including her absence on July 16 , 2014 .

That same day, Mr. Markford met with Respondent for an E mployee

Conference Report due to her continued absences without pay,

including her absence on July 17, 2014 . As reflected in the

E mployee C onference R eport, Respondent was again informed that

being in attendance every day was important. Respondent was

d irected to contact Mr. Markford directly to notify him of any

future absences and that she must provide a doctorÓs note for

such absences .

14 . Despite the coaching, Respondent continued to be

absent without pay and failed to comply with the corrective

action plan. As a result, Mr. Markford issued her a Letter of

Reprimand on September 14, 2014. Mr. Markford again explained

to Respondent that Ð[p]unctual and regular attendance is an

essential function of [he r] job.Ñ In the Letter of Reprimand ,

which Respondent signed, Respondent was specifically informed

that Ðany further incidents of absenteeism will be considered

willful absenteeism and [ that Mr. Markford ] will recommend tha t

[her] employment with the [School Board] be terminated.Ñ

15 . Following the reprimand, Mr. Markford informed the

School BoardÓs h uman r esources office of the issues with

RespondentÓs excessive absences and identified the disciplinary

procedures he had followed .

16 . It was only after Respondent had exhibited a clear

pattern of absenteeism and had been specifically warned that her

continued actions would lead to a recommendation for termination

that she filed a complaint against a co - worker alleging

harassment. Specifically, on September 26, 2014, Respondent

alleged that Christopher Griesbeck, night Custodian 1 at J.D.

Floyd, said her Ðdays are numbered here and laughed.Ñ The

complaint also referenced an April 2014 incident where

Mr. Griesbeck, who was allegedly upset that Respondent was

appointed to a day shift instead of him, took her to classrooms

she was responsible for and pointed out deficiencies. There was

no allegation that the alleged harassment was sexual in nature.

17 . Mr. Markford condu cted an investigation into the

harassment allegations by interviewing Respondent ; Vincent

Juliano, a Custodian 2 at J.D. Floyd ; Mr. Griesbeck ; and several

Custodian 1s at J.D. Floy d. After completing the investigation,

Mr. Markford determined that Respondent Ós Ð complaint of working

in a hostile environment is unfounded.Ñ The investigation

revealed that , as a result of RespondentÓs high absenteeism,

there was a degree of resentment and frustration among some of

the custodial staff . Mr. Markford too k steps to address the

issue and developed a plan to limit the interaction between

Respondent and Mr. Griesbeck going forward. Mr. Markford met

with Respondent to inform her of his findings.

18 . On October 17, 2014, Respondent suffered an injury at

work when she mis - stepped and twisted her knee, aggravating a

pre - existing injury. A workersÓ compensation injury report was

completed on October 20 , 20 14 , at Mr. Markford Ós insistence and

Respondent thereafter received treatment. The next day,

October 21, 2014, Respondent was cleared to return to work with

restrictions for her left knee. Consistent with the

restrictions, as well as the restrictions she had over the next

couple of months, J.D. Floyd provided her with light - duty work.

19 . On December 15 , 2014, Respondent Ós treating physician

cleared her to return to work from her workersÓ compensation

injury with no restrictions. But Respondent was absent wi thout

authority on December 15 , 17, 18 , 19, 22, and 23 , 2014 . The

PetitionerÓs school district h ad a vacation break from

December 24, 2014, through January 4, 2015. After returning

from the break, Respondent Ós unauthorized absenteeism continued .

20 . On January 6, 2015, Respondent Ós treating physician

cleared her to return to work on January 12, 201 5, again with no

restrictions. Despite this, Respondent Ós high absenteeism and

failure to follow the corrective action plan continued. On

January 28, 2015, Mr. Markford held a meeting with Respondent

because she was absent on January 12 , 13, 14, 16, 20, 21, 26,

and 2 7 , 2015, without providing a doctorÓs note. Mr. Markford

explained that he considered Respondent Ós actions to be

insubordination and the matter would be referred to Human

Resources.

21 . Respondent Ós absences continued. At the time of those

continued absences, Respondent would send text messages to

Mr. Markford explaining she was not coming to work, and

Mr. Markford would respond by informing her that she did not

have any leave time and she was required to come to work. She

did not comply w ith the directions.

22 . On February 2, 2015, PetitionerÓs Director of Human

Resources, Dr. Sarah Meaker, wrote a memorandum to the

PetitionerÓs Equity, Policy, Insurance and Compliance

Administrator, Heather Martin, recommending that disciplinary

action be imposed against Respondent based on Respondent Ós

continual absence from work without a doctorÓs note.

23 . On February 12, 2015, Mr. Markford met with Respondent

regarding her continued failure to come to work and non -

compliance with the corrective action plan. This was the first

workday in February that Respondent showed up to work.

Respondent refused to sign any documentation and left work early

without authority.

24 . On February 13, 2015, Ms. Martin informed Respondent

that a pr e - determination meeting would be scheduled regarding

Respondent Ós excessive absenteeism and absenteeism without leave

in violation of School Board Policy 6.37 Group III (5) and (8).

P etitioner had difficulty trying to contact Respondent in an

effort to mo ve forward with the disciplinary process. In reply

to a text message from Mr. Markford informing her to contact

Ms . Martin, Respondent responded : ÐThey have my number they can

use it.Ñ

25 . In preparation for the predetermination meeting,

Ms. Martin had a calendar created for the 2014 - 15 school year

which showed the number of days and partial days that Respondent

was absent. Specifically, for July 2014, Respondent missed five

full days and one partial day; for August 2014, she missed four

full days and three partial days; for September 2014, she missed

seven full days and one partial day; for October 2014, she

missed four full days and three partial days; for November 2014,

she missed six full days and three partial days; for December

2014, she missed nine full days; for January 2015, she missed 12

full days and five partial days; and for February 2015, through

the 18th of that month, she missed 11 full days and o ne partial

day out of the 12 possible work days.

26 . The predetermination meeting was held on February 18,

2015. Minutes were kept for the meeting and thereafter

transcribed. At the predetermination hearing, Respondent

admitted that she was no longer on workersÓ compensation because

the doctor cleared her as maximum medical improvemen t (MMI).

Respondent offered no valid justification for her excessive

absenteeism and absenteeism without authority. Following the

meeting, Ms. Martin recommended to the Superintendent that

Respondent be terminated due to her excessive absenteeism and

absence without authority.

27 . On February 19, 2015, PetitionerÓs Superintendent of

schools, Dr. Lori Romano, charged Respondent with violating

School Board Policy 6.37 Group III (5) and (8) based on

Respondent Ðbeing excessively absent and absent wi thou t

authority.Ñ Dr. Romano explained there was probable cause for

discipline and that she would recommend Respondent Ós

termination.

28 . After Respondent indicated she wished to appeal the

recommendation, the matter was transferred to DOAH and an

administrative hearing was scheduled . Respondent did not attend

the hearing. Respondent did not give advance notice that she

would not attend the hearing and she did not explain or provide

a reason for her absence.

CONCLUSIONS OF LAW

29 . D OAH ha s jurisdiction over the parties and subject

matter over the petition. §§ 12 0.569 & 120.57, Fla. Stat.

(2015 ).

30 . Petitioner bears the burden of proof to show by a

preponderance of the evidence that Respondent committed the

charged grounds for discipline and that cause exists to

terminate her employment . See McNeil v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996) ; Dileo v. Sch. Bd.

of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). An educational

support employee can be terminated for Ðreasons stated in the

collective bargaining agreement, or in district school board

rule.Ñ § 1012.40(2)(b), Fla. Stat. The Petitioner has met its

burden to show Respondent violated School Board Policy 6.37

Group III offenses (5) (excessive absenteeism or excessive

tardiness) and (8) (absence from duty without authority,

including refusal to report to duty at any time as directed) . A

first offense for a Group III violation is punishable Ð [u] p to

discharge.Ñ

3 1 . The School Board proved, by a preponderance of the

evidence , that Respondent exhibited a clear pattern of habitual

absenteeism and absences without authority. Based on

Respondent Ós excessive absenteeism and absences without

authority , it is concluded that there is just cause to terminate

RespondentÓs employment. See , e.g. , Seminole C nty. Sch. Bd. v.

Williams , DOAH Case No. 11 - 1736 July 28, 2011 , ¶ 21 (Recommended

Order finding just cause exists to terminate custodian who was

absent without leave) ; Seminole Cnty. Sch . Bd. Final Order

Sept. 13, 2011 ( adopting Recommended Order ).

32 . In its Proposed Recommended Order, Petitioner suggests

that an award for Petitioner Ós costs and attorneyÓs fees

associated with this proceeding would be appropriate on the

ground that Respondent Ós failure to show up for the hearing

demonstrated that she participated in the proceeding for an

improper purpose. See § 1 20.595(1)(d), Fla. Stat. While

RespondentÓs failure to attend the final hearing or file a

proposed r e commended order certainly waived her right to defend

against the allegations supporting her termination, her failure

to participate, under the facts and circumstances of this case ,

is insufficient to show that RespondentÓs primary intent was Ðto

harass, to cause unnecessary delay, for any frivolous purpose,

or to needlessly increase the prevailing partyÓs costsÑ in th is

proceeding . See Burke v. Harbor Estates Assocs., Inc. , 591 So.

2d 1034, 1037 (Fla. 1st DCA 1991) (explaining grounds for

finding that a party participate d in a DOAH hearing for an

improper purpose ). Therefore, although the School Board proved

grounds supporting RespondentÓs termination, an award for

PetitionerÓs costs and attorney fees is not recommended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered terminating

RespondentÓs employment with the School Board.

DONE AND ENTERED this 17th day of July, 2015, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of July, 2015.

ENDNOTE

1/ All references to the Florida Constitution , Florida Statutes ,

and School Board Policies are to the 2014 version s unless

otherwise indicated.

COPIES FURNISHED :

Kimberly Rosario

2145 Founder Road

Spring Hill, Florida 34606

Thomas M. Gonzalez, Esquire

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

201 North Franklin Street , Suite 1600

Tampa, Florida

(eServed)

Lori Romano, Ph.D.,

Superintendent

The School District of Hernando County

919 North Broad Street

Brooksville, Florida 34601

( eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.