20-004804 School District Of Osceola County, Florida vs. Lori Strecker-Tattoli Status: Closed Recommended Order on Monday, February 1, 2021.

Summary: Petitioner proved by a preponderance of the evidence that Respondent failed to report to work for three days. Termination of employment is recommended.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE S CHOOL B OARD OF O SCEOLA C OUNTY ,

F LORIDA ,

Petitioner ,

Case No. 20 - 4804

vs.

L ORI S TRECKER - T ATTOL I ,

Respondent .

/

R ECOMMENDED O RDER

O n December 17 , 2020, Administrative Law Judge Lynne A. Quimby -

Pennock of the Division of Administrative Hearings (DOAH) conducted a

disputed - fact evidentiary hearing via Zoom conference from Tallahassee,

Florida.

A PPEARANCES

For Petitio ner: Frank C. Kruppenbacher, Esquire

Frank Kruppenbacher, P.A.

817 Beck Boulevard , Building 1000

Kissimmee, Florida 34744

For Respondent: Lori Strecker - Tattol i , pro se 1

2336 Deer Creek Boulevard

St. Cloud, Florida 34772

S TATEMENT OF T HE I SSUE

1 The hearing was called to order at approximately 9:00 a.m. , Respondent (and her husband)

voluntarily removed themselves from the h e a r i n g at approximately 10:09 a.m. A recess was

taken from 10:22 a.m. t o 10:30 a.m. Neither Respondent nor her husband return ed to the

hearing .

The issue in this case is whether Petitione r , the School Board of Osceola

County, 2 Florida (the Board), has just cause to terminate RespondentÔs

employment as an educational support employee pursuant to section

1012.40(2), Florida Statutes (2020).

P RELIMINARY S TATEMENT

By letter dated August 20, 2020, Debra Pace, the S uperintendent of the

Board , informed Respondent, Lori Strecker - Tattoli (Ms. Strecker - Tattoli or

Respondent) , that she was suspended without pay, and that the Board w ould

consider a recommendation to terminate her as an employee at its

September 22, 2020 , Board meeting. The letter provided in pertinent part:

In accordance with the authority set forth in School

Board Policy 6.37, [ 3 ] Articles X and XI of the

contract be tween the School Board of Osceola

County, Florida and the Education Staff

Professionals, [ 4 ] as well as section 1012.40 Florida

Statutes, this letter is your official notice of the

determination of your abandonment from your

position with the Osceola School District. Allowing

you the information and rights contained herein,

please note your position will be officially

terminated on September 22, 2020, on the basis of

your willful neglect of duty evidenced by your

failing to report to work since August 17, 20 20.

Your school administration and Human Resources

office has tried to contact you with no response.

Your school requested a well check by St. Cloud

Police on August 19, 2020 in which they did make

contact with you and provided to the school that

you were alive and well at your residence.

2 The BoardÔs official name is The School Board of Osceola County. £ 1001.40, Fla. Stat.

(2020). The case style has been amended accordingly .

3 School Board Policy 6.37 was not offered as an exhibit.

4 Articles X and XI of the contract between the Boa rd and the Education Staff Professionals

were not offered as an exhibit.

You did not appear for work on August 17, 2020,

and continuing thereafter.

Violation of School Board Rule 6.511 Absence

Without Leave:

II. Professional Support - Any other employee who

is willfully absent from duty witho ut leave shall be

subject to dismissal from employment and shall

forfeit compensation for the time of the absence.

III. Three (3) working days of failure to report for

duty or be on approved leave will be determined

abandonment of position and employee wi ll be

subject to termination.

I find that the abandonment of your position

constitutes willful neglect of duty and constitutes

just cause pursuant to section 1012.67, Florida

Statutes

On September 1, 2020, Ms. Strecker - Tattoli filed a request for a Ñform al

hearingÒ with the SuperintendentÔs office. The BoardÔs clerk referred this

matter to DOAH on October 28, 2020.

On November 6, 2020, the Notice of Hearing by Zoom Conference (Notice),

and the Order of Pre - hearing Instructions (Order) were eServed on bot h

parties. The Notice scheduled the hearing for December 17, 2020, and

provided information as to the method of connecting with the Zoom

conference. The Notice also provided specific directions on when (Ñon or before

December 10, 2020 , Ò and Ñat least seven days before the hearingÒ), and how to

submit exhibits (Ñby mail or hand - deliveryÒ) to the undersigned.

On November 17, 2020, Ms. Strecker - Tattoli filed a Motion to Compel

(Motion) regarding certain documents and other information she had

previously requ ested from the Board. The Board responded to the Motion on

November 20, 2020. On November 23, 2020, an Order on the Motion was

entered. On November 23, 2020, ÑRespondent's Response to Petitioners

Response and Second Motion to Compel with a Motion for Sanct ions against

Opposing Counsel for Denying Production of Surveillance VideoÒ (Second

Motion) was filed.

On December 1, 2020, a duly noticed telephone conference was held

regarding the Second Motion. Following the telephone conference, an ÑOrder

on Second MotionÒ was entered. On December 3, 2020, the Board filed its

exhibit and witness lists. On December 4, 2020, the Board filed its

supplemental response to the Second Motion. On December 10, 2020, the

BoardÔs proposed exhibits were filed at DOAH.

On Decemb er 16, 2020, at 4:55 p.m. ÑRESPONDENTÔS NOTICE OF

FILING TESTIMONY AND EXHIBIT LIST with EVIDENTIARY

SUPPORT,Ò an 88 - page pleading , was filed. Before the hearing started on

December 17, 2020, the Board filed a one - page document. As explained at the

beginni ng of the hearing, and pursuant to the Notice (page 4, paragraph E),

each partyÔs exhibits were to be provided to the undersigned on or before

December 10, 2020. Both parties were told these late filed exhibits would not

be admitted into the record. The Bo ardÔs counsel acknowledged its one - page

exhibit was late, and it would not be used. The hearing was completed on

December 17, 2020.

At the hearing, the Board called: Bernard J. Brosam, of the Saint Cloud

Police Department; Tammy Cope - Otterson, the BoardÔ s chief human resource

officer; Edward Murphy, the BoardÔs Office 365 administrator and network

specialist; Bronsky Bryant, Osceola High SchoolÔs assistant principal; and

D oris Rodriguez, Osceola High SchoolÔs executive secretary. The BoardÔs

Exhibits 1 th rough 3, 6, and 9 through 15 were admitted into evidence

without objection. The BoardÔs Exhibits 4, 5, and 8 were admitted into

evidence over RespondentÔs objections. Ms. Strecker - Tattoli (and her

husband) voluntarily removed themselves from the hearing be fore

Ms. Strecker - Tatttoli could testify on her own behalf or offer any exhibits.

At the conclusion of the hearing, the BoardÔs counsel was informed of the

ten - day deadline provided by rule for filing proposed recommended orders

(PROs) after the final he aring transcript is filed with DOAH. The BoardÔs

counsel provided that the BoardÔs winter - holiday break was beginning on

Monday, December 21, 2020, and requested additional time, specifically ten

days from January 4, 2021, in which to file its PRO. Ms. Str ecker - Tattoli

voluntarily removed herself from the hearing, and without hearing an

objection to the request, it was granted.

The one - volume Transcript was filed with DOAH on January 13, 2021.

Later that same day, a Notice of Deadline for Filing Proposed Recommended

Orders was issued advising the parties that the Transcript had been filed and

their respective PROs were to be filed before 5:00 p.m. on January 25, 2021. 5

The Board timely submitted its PRO, which has been considered in the

preparation of thi s Recommended Order. To date, Ms. Strecker - Tattoli has

not submitted a PRO. To the extent the BoardÔs PRO contained hearsay

evidence not supported by direct testimony or evidence, that information has

not been considered.

5 According to Florida Administrative Code R ule 28 - 106.103, when the last day of the period

falls on a Saturday, Sunday , or legal holiday, Ñthe period shall run until the end of the n ext

day which is not a Saturday, Sunday or legal holiday.Ò In this instance, January 2 3, 2021 ,

fell on the weekend, thus the Notice established Monday, January 25, 2021 , for the filing.

Any references to Florida Statut es, administrative rules, or the BoardÔs

policies are to the versions in effect at the time of the allegation s , except as

otherwise indicated.

F INDINGS OF F ACT

Based on the competent substantial evidence adduced at the final hearing,

the following Finding s of Fact are made:

I. The Parties

1. The Board is responsible for operating the public schools in the Osceola

County School District and for hiring, firing, and overseeing both

instructional employees and paraprofessional employees within Osceola

County, Florida.

2. At all times pertinent to this case, Ms. Strecker - Tattoli was employed

by the Board as an exceptional student education (ESE) paraprofessional.

During the 2019 - 2020 school year, Ms. Strecker - Tattoli was assigned to one

student in an ESE class at Osceola High School (OHS).

II. The BoardÔs Policy

3. The BoardÔs Policy 6.511 covers ÑABSENCE WITHOUT LEAVE.Ò

Specifically, section II provides: ÑProfessional Support Ï any other employee

who is willfully absent from duty without leave shall be subjec t to dismissal

from employment and shall forfeit compensation for the time of the absence.Ò

Section III provides : ÑThree (3) working days of failure to report for duty or be

on approved leave will be determined abandonment of position and employee

will be subject to termination.Ò

III. The BoardÔs Process

4. Ms. Rodriguez has been the executive secretary 6 for OHS since 2017.

Prior to the 2020 - 20 21 school year, Ms. Rodriguez sent an e - mail to everyone

employed at OHS with the starting dates and other pert inent information for

the upcoming school year. Ms. Rodriguez testified that OHS does not send

letters to OHS faculty, staff, or other employees, but uses e - mail to conduct

Board business.

5. Ms. Otterson, the BoardÔs chief human resource officer with 34 y ears of

experience, testified the Board Ñactually frown[s] upon sending mail through

the U.S. postal service. ItÔs a waste of the taxpayer dollars when every

employee has e - mail to communicate ... . Any notification goes through e - mail

to employees.Ò

6. M s. Otterson also testified about what happens when she is notified of

an employee being absent without leave. Ms. Otterson talks with the

employeeÔs administrator and inquires of the attempts made to contact the

employee. That administrator provides to Ms. Otterson the dates and times

on which those attempted contacts were made and the outcome of each

attempt.

7. Ms. Otterson will then direct the administrator to have a Ñwell checkÒ of

the employee conducted by local law enforcement. If law enforcement is able

to contact the employee, and the employee does not timely contact their

administrator, Ms. Otterson will also attempt to contact the employee.

Ms. Otterson will use the employeeÔs phone number listed in the BoardÔs

official employee record. If all att empts to establish contact with the

employee are unsuccessful, Ms. Otterson will submit a letter to the BoardÔs

S uperintendent with the details of all the attempted contacts. Ms. Otterson

6 Ms. Rodriguez us ed the term Ñ executive secretary Ò interchangeably with the terms

Ñdesignated secretaryÒ and ÑprincipalÔs secretary . Ò

will also prepare, for the BoardÔs S uperintendent, a job abandonment -

termination letter to the employee.

8. The Board provides Ñaccess to a variety of electronic resources to assist

students and teachers including but not limited to: Moodle, Office 365, [and]

Discovery Education.Ò If anyone has difficulty accessing the v arious

resources, the employee is directed to either their schoolÔs library media

specialist or the ÑMedia & Instructional Technology Department at extension

67200.Ò Further, Ñdistrict business conducted by e - mail must be done using

the e - mail account that the District supplies.Ò

9. Mr. Murphy is the BoardÔs Office 365 administrator and network

specialist. He testified that every Board employee has an e - mail account

which can be accessed using a cell phone or the internet. For security reasons

and data ret ention, Board employees are required to conduct Board business

through their active e - mail account s because the Board does not have control

over Ñexternal hardware . Ò

10. Mr. Murphy confirmed Ms. Strecker - Tattoli had an active Office 365

account, including e - mail, from 2019 through September 2020, and had not

reported any issues with her account to the information technology (IT)

department.

IV. August 3, 2020 through September 4, 2020

11. On August 3, 2020, Ms. Rodriguez sent the following e - mail, with

att achments, to all the OHS faculty, including the paraprofessionals, via

their individual e - mail addresses:

Hello team,

Please find attached the new calendars with your

work dates.

* * *

Paraprofessionals and 9 month office assistants

return on Aug ust 17th and are off on the 8/20 &

8/21

Students return to school 8/24

I will be emailing the Pre - planning schedule soon.

Regards,

Doris D. Rodriguez

One of the attached calendars reflected that OHS paraprofessionals were to

begin work on Monday, August 17, 2020, but could stagger their work

schedule until the students returned to school on August 24, 2020.

12. Mr. Bryant has been an assistant principal at OHS since 2011. He is

in a management and supervisory role, and served as Ms. Strecker - Tattoli Ôs

su pervisor. During the 2020 - 2021 school year, Ms. Strecker - Tattoli was to be

assigned as a one - on - one paraprofessional to the ESE student with whom she

had worked with during the 2019 - 2020 school year.

13. Ms. Strecker - Tattoli did not report to OHS for work in August 2020.

Mr. Bryant called Ms. Strecker - Tattoli and left a voice message. When he did

not receive a return call from Ms. Strecker - Tattoli , Mr. Bryant sent a text

message to Ms. Strecker - Tattoli , asking her to respond. Mr. Bryant did not

get a respo nse to either his voice or text messages.

14. After failing to get any response from Ms. Strecker - Tattoli , Mr. Bryant

contacted Ms. Otterson about Ms. Strecker - Tattoli Ôs absence. Ms. Otterson

and Mr. Bryant discussed the steps that he had taken to communi cate with

Ms. Strecker - Tattoli . Per t he process, Ms. Otterson asked Mr. Bryant to

contact a local law enforcement agency to conduct a wellness check on

M s. Strecker - Tattoli . When he received the wellness check information

regarding Ms. Strecker - Tattoli , Mr . Bryant was to inform Ms. Otterson of the

results.

15. On or around August 19, 2020, Mr. Bryant contacted the Saint Cloud

Police Department (PD) , and requested a wellness check be performed to

determine if Ms. Strecker - Tattoli was alright.

16. Officer B rosam, a certified law enforcement officer, conducted the

wellness check on Ms. Strecker - Tattoli . Officer Brosam was greeted by

Ms. Strecker - Tattoli at her front door. After explaining that Ñmembers of the

school district had concernsÒ for her well - being, Officer Brosam determined

that Ms. Strecker - Tattoli was fine.

17. The PD contacted Mr. Bryant and confirmed that Ms. Strecker - Tattoli

was fine. Mr. Bryant, then again, attempted to contact Ms. Strecker - Tattoli

to no avail.

18. Once Mr. Bryant informed Ms. Otterson that Ms. Strecker - Tattoli was

located and fine, Ms. Otterson attempted to contact Ms. Strecker - Tattoli .

Ms. Otterson used the BoardÔs employee record to contact Ms. Strecker -

Tattoli , however Ms. Strecker - Tattoli did not respond to Ms. OttersonÔs c all.

19. Ms. Otterson submitted the information to Dr. Pace detailing the

multiple attempts to contact Ms. Strecker - Tattoli . Ms. Otterson then

prepared the termination letter for Dr. PaceÔs signature. The August 20,

2020 , termination letter was issued. On September 1, 2020, Ms. Strecker -

Tattoli Ôs response and request for hearing were received by the Board.

2 0 . Based on information within Ms. Strecker - Tattoli Ôs request for

hearing , Ms. Otterson sent Ms. Strecker - Tattoli an e - mail on September 4,

2020. This e - mail asked Ms. Strecker - Tattoli for the name of the OHS

employee to whom she spoke with after Officer Brosam conducted the

wellness check. M s. Strecker - Tattoli did not respond to the requested

information.

2 1 . Ms. Strecker - Tattoli Ôs request for hearing , entered as the BoardÔs

Exhibit 12, 7 made requests for copies of various files and records, and alluded

to issues different than those set forth in Dr. PaceÔs termination for

abandonment of position letter. Even the last paragraph of Ms. Strecker -

Tattoli Ô s request for hearing simply recited that she Ñdid not receive any such

letter or any other such communication notifying [her] of the date/time to

return to [her] position at OHS,Ò yet it failed to offer any explanation as to

why she did not show up for wo rk after the multiple attempted contacts by

OHS personnel and the local PD.

2 2 . The unrebutted evidence is that Ms. Strecker - Tattoli was contacted

numerous times by OHS staff and once by the local PD. After the repeated

attempted contacts, Ms. Strecker - Tat toli did not respond to the various

messages left for her. Further, the unrebutted evidence is that Ms. Strecker -

Tattoli did not report for work at OHS and she was absent from work for

three or more days without notifying her administrator.

C ONCLUSIONS OF L AW

2 3 . DOAH has jurisdiction over the parties and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and 1012.33, Florida

Statutes.

2 4 . The Board is a duly constituted school board charged with the duty to

operate, control, and s upervise all free public schools within the school

district of Osceola County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.30 and

1001.33, Fla. Stat.

2 5 . The BoardÔs superintendent has the authority to recommend to the

Board that an employee be terminat ed from employment. § 1012.27(5), Fla.

Stat.

7 The BoardÔs Exhibit 12 was entered into evidence while Ms. Strecker - Tattoli was still

present for the hearing.

The Superintendent issued the termination for abandonment of position

letter on August 20, 2020. The Board is, therefore, limited to seeking

discipline only for the violations outlined in the termination letter . Discipline

for any other conduct or infractions would not be authorized. Christian v.

DepÔt of Health, Bd. of Chiropractic Med., 161 So. 3d 416 (Fla. 2d DCA 2014),

and cases cited therein.

2 6 . The Board seeks to terminate Ms. Strecker - Tattoli Ôs employme nt and

has the burden of proving its allegations by a preponderance of the evidence,

as opposed to the higher standard of clear and convincing evidence. See

McNeill v. Pinellas Cty. Sch. Bd ., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v.

Sch. Bd. of Dade Cty ., 571 So. 2d 568, 569 (Fla.3d DCA 1990); and Dileo v.

Sch. Bd. of Dade Cty., 569 So.2d 883 (Fla. 3d DCA 1990).

2 7 . The preponderance of the evidence standard requires proof by Ñthe

greater weight of the evidence,Ò BlackÔs Law Dictionary , 1344 (7th ed. 19 99),

or is evidence that Ñmore likely than notÒ tends to prove the proposition set

forth by a proponent. Gross v. Lyons , 763 So. 2d 276 (Fla. 2000) (relying on

American Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

(quoting Bourjaily v. U nited States , 483 U.S. 171, 175 (1987)).

2 8 . In proceedings at DOAH, the matter is considered de novo 8 by the

Administrative Law Judge (ALJ). There is no presumption of correctness that

attaches to the BoardÔs decision. Fla. DepÔt of Transp. v. J.W.C. Co. , 396 So 2d

778 (Fla. 1st DCA 1981).

29 . ÑJust causeÒ is defined in section 1012.33(1)(a), in pertinent part as:

Just cause includes, but is not limited to, the

following instances, as defined by rule of the State

Board of Education: immorality, misconduct in

office, incompetency, two consecutive annual

performance evaluation ratings of unsatisfactory

under s. 1012.34 , two annual performance

evaluation ratings of unsatisfactory within a 3 - year

8 De novo means Ñanew; afresh; a second time,Ò BlackÔs Law Dictionary, 483 ( 4th ed. 1968) .

period under s. 1012.34 , three consecutive annual

performance ev aluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under s. 1012.34 ,

gross insubordination, willful neglect of duty, or

being convicted or found guilty of, or entering a

plea of guilty to, regardless of adjudicat ion of guilt,

any crime involving moral turpitude.

3 0 . In pertinent part, section 1001.41 , Florida Statutes , provides the

following:

General powers of district school board . Ð The

district school board, after considering

recommendations submitted by the dis trict school

superintendent, shall exercise the following general

powers:

(1) Determine policies and programs consistent

with state law and rule deemed necessary by it for

the efficient operation and general improvement of

the district school system.

(2) Adopt rules pursuant to ss. 120.536 (1)

and 120. 54 to implement the provisions of law

conferring duties upon it to supplement those

prescribed by the State Board of Education and the

Commissioner of Education.

3 1 . Pursuant to section 1001.41, the School Board has adopted Policy

6.511 which provides in pertinent part:

I. Administrative and Instructional - Any member

of the administrative or instructional staff who is

willfully absent from duty without leave shall

forfeit compensation for the time of the absence and

the employeeÔs contract shall be subje ct to

cancellation by the School Board. In addition, such

absence without leave shall interrupt continuity of

service.

II. Professional Support - Any other employee who

is willfully absent from duty without leave shall be

subject to dismissal from employm ent and shall

forfeit compensation for the time of the absence.

III. Three (3) working days of failure to report for

duty or be on approved leave will be determined

abandonment of position and employee will be

subject to termination.

3 2 . The Board satisf ied its burden and proved by a preponderance of the

evidence that Ms. Strecker - Tattoli violated Board policy 6.511, by her failure

to report for duty for three working days or be on approved leave, which

constituted an abandonment of her position, and subj ected her employment

to termination. Having considered all of the facts set forth above , the

undersigned concludes that termination of employment is appropriate.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMEN DED that the School Board of Osceola County affirm its

decision to terminate Ms. Strecker - Tattoli Ôs employment as a

paraprofessional employee for the Board.

D ONE A ND E NTERED this 1st day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2021 .

C OPIES F URNISHED :

Fra nk C. Kruppenbacher, Esquire Lori Strecker Strecker - Tattoli

Frank Kruppenbacher, P.A. 2336 Deer Creek Boulevard

Building 1000 St. Cloud, Florida 34772

817 Beck Boulevard

Kissimmee, Florida 34744 Dr. Debra P. Pace, Superintendent

The School District of Osceola County,

Matthew Mears, General Counsel Florida

Department of Education 817 Bill Beck Boulevard

Turlington Building, Suite 1244 Kissimmee, Florida 34744 - 4492

325 West Gaines Street

Tallahassee, Florida 32399 - 040 0

N OTICE OF R IGHT T O S UBMIT E XCE PTIONS

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.