18-004481 Osceola County School Board vs. Gilberto Colon-Vega Status: Closed Recommended Order on Tuesday, November 20, 2018.

Summary: School Board established good cause to terminate the employment of Respondent, a part-time custodian.

ST ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCEOLA COUNTY SCHOOL BOARD,

Petitioner ,

vs. Case No. 18 - 4481TTS

GILBERTO COLON - VEGA,

Respondent .

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a

hearing in th is case on October 1, 2018, in Kissimmee, Florida.

APPEARANCES

For Petitioner : Frank C. Kruppenbacher, Esquire

Frank Kruppenbacher, P.A.

9064 Great Heron Circle

Orlando, Florida 32836 - 5483

For Respondent: Gilberto Colon - Vega, pro se

409 Mallard Way

Poinciana, Florida 34759 - 4448

STATEMENT OF THE ISSUE

The issue is whether there exist s good cause for the

School Board of Osceola County (School Board) to terminate

Respondent as an educational support employee pursuant to

section 1012.40 (2) , Florida Statutes (2018).

PRELIMINARY STATEMENT

By letter dated June 11, 2018, the s uperintendent of the

School Board informed Respondent, a part - time custodial

employee, that he was suspended without pay and that the School

Board would consider a recommendation to terminate him as an

employee at its next meeting. The letter allege s that his

actions in the spring of 2018 constitute misconduct in violation

of School Board Rule 6.391, Zero Tolerance for Workplace

Violence, and School Board Rul e 6.392, Civility , and they

violate the Principles of Professional Conduct for the Education

Profession in Flori da . Finally, the letter allege s Respondent's

actions endanger the health, safety, and welfare of other

employees , and , therefore , termination is appropriate under his

union contract . 1/ Respondent timely requested a hearing , and the

matter was referred by the School Board to the Division of

Administrative Hearings to resolve the dispute.

At the hearing, the School Board presented the testimony of

four witnesses. School Board Exhibits 1 through 7 w ere accepted

in evidence . Respondent did not present any testimony or offer

any exhibits.

A one - volume T ranscript of the hearing was prepared.

Proposed f indings of f act and c onclusions of law were filed by

the School Board, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The School Board is charged with the responsibility and

authority to operate, control, and supervise the public schools

within Osceola County. It has the authority to discipline

educational support employees. § 1012.40(2), Fla. Stat.

2. At all times relevant hereto, Respondent was a part -

time custodian at Parkway Middle School. His supervisor was

plant manager Don Williams.

3. In the spring of 2018, Mr. Williams reviewed

surveillance footage depicting Respondent leaving the job early

on numerous occasions. Each time he was confronted with

departing work early, Respondent would attribute his departures

to family problems . He even showed Mr. Williams a picture of a

dead man in a vehicle that Respondent identified as his nephew.

4. Mr. Williams also witnessed Respondent initiate

arguments with co - workers over work assignments numerous times

and concluded that Respondent is "nasty and hotheaded towards

his fellow employees."

5. Because Respondent ' s primary language is Spanish ,

he asked co - workers to translate his interactions with

Mr. Williams . He often became hostile and upset with the

co - workers while they translated for him, to the extent one

co - worker asked Respondent to stop asking him to translate.

6. On April 4, 2018, a scho ol administrative assistant

approached Respondent in the teacher's lounge to ask him about

his leaving work early, without permission. Respo n dent told the

assistant that he left early because of a family incident and

asked if he could make up the time. T he assistant explained

that Respondent could not make up the time and proceeded to

enter his work time into the employee portal.

7. During lunch hour that same day, Respondent shouted in

Spanish at the administrative assistant while flailing his arms

at h er for adjusting his time.

8. Based on this unprofessional interaction with the

administrative assis tant, Respondent was issued a "civility

notice" by Assistant Principal Marc Hernandez.

9. On April 13, 2018, Mr. Hernandez met with Respondent

again aft er Respondent threw a student chair across the

courtyard during a disagreement with a co - worker, Alfredo

Zavala. During that encounter, Respondent ordered Mr. Zavala

not to mess with him and told him that "in Puerto Rico, people

get killed and thrown into the garbage."

10. Respondent was issued a verbal warning by

Mr. Hernandez for his actions in throwing the student chair, his

unprofessional interactions with co - workers, and leaving work

early , without permission .

11. On May 18, 2018, Mr. Williams ask ed Respondent to help

set up for a dance event at the school which was planned for the

following day. In response to that request, Respondent slammed

his hand on the table, rose up to approximately two inches from

Mr. Williams' fac e , yelled at him in Span ish, and walked out of

work, leaving his job duties incomplete.

12. On May 22, 2018, Respondent, believing that a

co - worker, John Kelvey, informed the school administration about

the incident on May 18, showed Mr. Kelvey a video of a female

being shot multiple times in the face and told Mr. Kelvey,

"This is what happens to rats. Watch yourself." Respondent

also threatened Mr. Kelvey saying "This could be you," in

reference to the video.

13. That same day, Respondent was cleaning the classroom

of JoA nn Feliciano , a classroom teacher. He told her he had a

letter from Mr. Hernandez, requesting a meeting with Respondent.

14. Ms. Feliciano advised Respondent that he should have a

union representati ve with him at the meeting so as to not be

alone. Respo ndent replied that he would not be alone because he

would have a gun with him.

15. Ms. Feliciano told Respondent that she would pray for

him so that Respondent would not do anything he would regret.

Respondent replied that the only thing he would regret was not

being able to get the other two custodians that worked in the

hallway once the meeting was concluded. He explained that the

two co - workers would be running for their lives.

16. After this interaction with Respondent, Ms. Feliciano

experienced hig h blood pressure , which required medical

treatment.

17. On May 23, 2018, Respondent was arrested in Polk

County (where he resides) for a violation of section 790.163, a

felony, which prohibits an individual from making a false report

concerning the use of a weapon and firearm in a violent manner.

On June 6, 2018, a Final Risk Protection Order was entered by

the c ircuit c ourt prohibiting Respondent from possessing a

firearm and ammunition.

18. P rogressive disciplinary measures were taken by the

School Boa rd for these actions , including the issuance of a

civility notice for Respondent's interaction with the

administrative assistant, a verbal warning for Respondent

throwing the student chair, and a letter from Respondent's

supervisor concerning his poor job performance. Despite these

progressive measures, his behavior did not change.

1 9 . Following these events, Sheila Williams, a School

Board investigator, conducted an investigation and concluded in

her report that Respondent "created a hostile work environ ment

for his co - workers." Sch. Bd. Ex. 6. On June 11, 2018, the

s uperintendent issued her letter informing Respondent that a

recommendation to terminate his employment would be made at a

School Board meeting in July 2018. This appeal ensued.

CONCLUSIONS OF LAW

20 . The superintendent of the School Board has the

authority to recommend to the School Board that an educational

support employee be terminated. § 1012.40(2)(c), Fla. Stat.

2 1 . The School Board has the burden of proving the

allegations in the s uperintendent's letter of June 11, 2018, by

a preponderance of the evidence. Cropsey v. Sch. Bd. of Manatee

Cnty. , 19 So. 3d 351, 355 (Fla. 2d DCA 2009).

2 1. School Board Rule 6.391, Zero Tolerance for Workplace

Violence, provides in part that employee s "shall not engage in

speech, conduct, behavior, verbal or nonverbal, or commit any

act of any type which is reasonably interpreted as abusive,

profane, intolerant, menacing, intimidating, threatening, or

harassing against any person in the workplace."

22 . School Board Rule 6.392 (III)(C) , Civility, provides in

part that "unacceptable behavior" includes, but is not limited

to, "threatening to do bodily or physical harm to another

employee regardless of whether or not the behavior constitutes

or may constit ute a criminal violation."

23. As previously found, by a preponderance of the

evidence, the School Board has proven that Respondent's action s

in April and May 2018 violate the foregoing rules and are

sufficient grounds for his termination.

24. His acti ons also violate Florida Administrative Code

Rule 6A - 10.081, the Principles of Professional Conduct for the

Education Profession in Florida , which prohibit , among other

things, an employee engag ing in conduct which creates a hostile

or intimidating environ ment in the workplace.

25. Collectively, the violations support the

superintendent's decision to terminate Respondent ' s employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Osceola County Sc hool Board enter a

final order terminating Respondent as an employee.

DONE AND ENTERED this 20th day of November , 2018, in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 20th day of November , 201 8 .

ENDNOTE

1/ Based on the accepted evi dence , Respondent's conduct

constitutes sufficient grounds for termination of his employment

under the union contract. See Contract Article 16, Section 2(E) ,

which provides that where an employee's conduct endangers the

safety of other employees, and prog ressive disciplinary steps

have not resulted in a modification of his behavior, the employee

may be terminated from employment.

COPIES FURNISHED:

Dr. Debra P. Pac e, Superintendent

School Board of Osceola County

817 Bill Beck Boulevard

Kissimmee, Florida 3 47 44 - 4492

Frank C. Kruppenbacher, Esquire

Frank Kruppenbacher, P.A.

9064 Great Heron Drive

Orlando, Florida 32836 - 5483

(eServed)

Gilberto Colon - Vega

409 Mallard Way

Poinciana, Florida 34759 - 4448

(eServed)

Matthew Mears, General Counsel

Department o f 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 of the date of this Recommended Or der. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.