02-002540 Miami-Dade County School Board vs. Marlon J. Pearce Status: Closed Recommended Order on Friday, May 2, 2003.

Summary: Middle school teacher was properly suspended without pay and dismissed for just cause for use of profane language, racial slur, and use of corporal punishment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

) Case No. 02 - 2540

MARLON J. PEARCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its designated Administrative Law Judge, Eleanor M. Hunter,

held a final hearing in the above - styled case on March 18, 2003,

in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade - La w Department

2200 Biscayne Boulevard, Fifth Floor

Miami, Florida 33137

STATEMENT OF THE ISSUE

Whether the Petitioner demonstrated just cause for the

dismissal of the Respondent from employment as a teacher.

PRELIMINARY STATEMENT

On June 20, 2002, the Superintendent of Schools for the

Petitioner, Miami - Dade County School Board ("Petitioner" or the

"School Board") notified the Respondent, Marlon J. Pearce (the

"Respondent" or "Mr. Pearce"), that, at its meetin g on June 19,

2002, the School Board suspended him and initiated proceedings to

dismiss him from employment, citing violations of specific Board

Rules and Florida Statutes. In a letter dated June 20, 2002,

counsel for Mr. Pearce requested a hearing to con test his

dismissal from his teaching position at Lawton Chiles Middle

School. On June 25, 2002, the School Board forwarded the matter

to the Division of Administrative Hearings, which assigned an

administrative law judge to hear the case.

Due to the diffi culty in securing witnesses during the

summer school recess, the parties initially requested a hearing

date in September 2002. Set for September, the case was

continued, without opposition, to November 2002, based on

Respondent's Motion for Continuance of Hearing. The Motion,

filed on August 22, 2002, included a statement that counsel for

Respondent could not prepare for the case unless the Petitioner

filed a Notice of Specific Chargeseated as a Motion for the

same, an Order Requiring Notice of Speci fic Charges was entered

on September 6, 2002. The School Board filed a Notice of

Specific Charges on September 20, 2002.

The Respondent's Motion to Strike paragraphs 15 and 16 of

the Notice of Specific Charges, filed on October 4, 2002, was

granted to the extent that the issues raised were limited to

whether the Respondent was placed on notice of the Petitioner's

policy against the use of corporal punishment. The Respondent's

Motion for More Definite Statement, also filed On October 4,

2002, was denied, a fter Petitioner's Memorandum in Opposition to

Motion for More Definite Statement, filed on October 14, 2002,

was considered. The Respondent's Unopposed Motion for

Continuance, filed on November 20, 2002, led to agreement on a

hearing date in March 2003.

A t the final hearing, the Petitioner, the School Board of

Miami - Dade County, Florida, presented the testimony of John G.

Schoeck, former principal of North Glade Elementary School; T.H.,

an eighth grade student at Lawton Chiles Middle School; John T.

Messen ger, Detective, Miami - Dade Schools Police Department; G.G.,

a ninth grade student at American Senior High School; J.L., a

ninth grade student at American Senior High; G.B., a ninth grade

student at Michael Krop Senior High School; Alberto Iber,

Assistant P rincipal at Lawton Chiles Middle School; J.B., a ninth

grade student at Barbara Goleman Senior High School; W.V., a

ninth grade student at American Senior High School; H.E., a ninth

grade student at Barbara Goleman Senior High School;

Karen Robinson, Princ ipal at Lawton Chiles Middle School; and

Barbara Ward Moss, District Director, Miami - Dade School Board

Office of Professional Standards, Miami - Dade County Public

Schools. Petitioner's Exhibits numbered 1 - 6, 8 - 10, and 15 - 26

(referred to herein as P - number) were received in evidence.

Official recognition was taken of Rules 6B - 1.001 and 6B - 4.009,

Florida Administrative Code, which were marked Petitioner's

Exhibit 27.

The Respondent, Marlon J. Pearce, testified on his own

behalf. At the request of counsel for the Respondent, official

recognition was taken of Subsection 228.041(27), Florida Statutes

(2001).

The transcript of the hearing (referred to herein as Tr.)

was filed April 7, 2002. The parties filed their proposed

recommended orders on May 2, 2003.

FINDINGS OF FACT

1. In a Joint Pre - Hearing Stipulation, the parties agreed

to the following facts:

(a) At all times material hereto,

Respondent, Marlon J. Pearce was employed by

Petitioner as a school teacher within the

school district of Miami - Dade Co unty,

Florida, assigned to Lawton Chiles Middle

School.

(b) Respondent was employed by Petitioner

pursuant to the Contract between the Miami -

Dade County Public Schools and the United

Teachers of Dade, and subject to the rules

and regulations of the State Board of

Education and of the School Board in

accordance with § 1012.33(6)(a), Fla. Stat.

(2002).

(c) At all times material hereto, Petitioner

was a duly constituted School Board charged

with the duty to operate, control and

supervise all free public sc hools within the

school district of Miami - Dade County,

Florida, pursuant to § 4(b) of Article IX of

the Constitution of the State of Florida and

§ 1001.32(2), Fla. Stat. (2002).

(d) On November 5, 2000, a conference - for -

record (CFR) was held with the Res pondent by

the principal at North Glade Elementary

School.

(e) On March 7, 2001, another CFR was held

with the Respondent by the principal at North

Glade Elementary School.

(f) On March 15, 2002, a CFR was held with

the Respondent at the School Board's Office

of Professional Standards.

(g) On May 28, 2002, a meeting was held with

the Respondent at the School Board's Office

of Professional Standards.

(h) At its regularly scheduled meeting of

June 19, 2002, the School Board took action

to suspend and initiate dismissal proceedings

against the Respondent.

2. John Schoeck is currently and for the last two years has

been the Principal of North Hialeah Elementary School. For the

preceding five years, he was the Principal at North Glade

Elementary School . While at North Glade, Mr. Schoeck hired the

Respondent, Mr. Pearce, to teach physical education. (Tr. 13)

3. After a November 5, 2000, conference - for - record (CFR)

with Mr. Pearce, Mr. Schoeck issued certain directives to

Mr. Pearce. Among those direc tives were the requirement for

professional conduct with parents, students and staff, and

prohibitions on using profanity, on making verbal or physical

threats to parents, students or staff members, and on having

verbal or physical confrontations with cowo rkers. (Tr. 18, 208 -

209, P - 6)

4. Mr. Schoeck also referred Mr. Pearce to the Employee

Assistance Program based on interpersonal behavior observed on

the job. (Tr. 9, P - 5)

5. An allegation that the Respondent hit a student in the

back with his fist was unsubstantiated, in March 2001. The

Respondent testified that the student was loud, easily influenced

and had an attitude. (Tr. 185)

6. Another student at North Glade Elementary School became

involved in a rock - throwing incident with the Respondent. Th e

Respondent described the student as defiant. He testified that

after the student threw a rock and hit him, he grabbed her arm to

make eye contact, but after she "started going wild and shaking,"

he let her go and she fell to the ground. There was testi mony

that her shirt was torn when she reached the principal's office,

but the Respondent denied that it was ripped when she left him.

(Tr. 186 - 188, 212 - 213)

7. On March 7, 2001, Mr. Schoeck held another CFR with

Mr. Pearce, as a result of certain allegat ions by a student and

his mother that Mr. Pearce called the student a "punk."

Mr. Schoeck found Mr. Pearce insubordinate and reiterated the

directives issued after the November conference. (Tr. 24 - 25,

209 - 210, 215 - 216, P - 9)

8. The Miami - Dade Schools Pol ice Department ("the school's

police") investigated several students' complaints alleging that

Respondent had subjected them to corporal punishment. The police

found the complaints to be unsubstantiated. Each time there was

an incident, the Respondent wa s reminded of the School Board's

policy prohibiting corporal punishment. (Tr. 32 - 33)

9. Late in the 2000 - 2001 school year, the Respondent was

reassigned to the region office and, subsequently, for the 2001 -

2002 school year to Lawton Chiles Middle School (Tr. 33 and Joint

Pre - Hearing Stipulation)

10. On November 7, 2001, a charge of verbal abuse, for

calling a student "stupid," was substantiated against the

Respondent. (Tr. 219, P - 17) The Respondent testified that what

he said was "stop acting stupid" b ecause the student was loud and

saying she knew why he had been fired from his other job and was

quoting the Bible. (Tr. 197 - 198) He also said that, in the heat

of the moment, he also called her stupid. (Tr. 200)

11. On November 8, 2001, the Respondent violated the School

Board policy against "unseemly conduct, or the use of abusive

and/or profane language in the workplace," by using the word

"nigga." (Tr. 60 - 67 and P - 16)

12. The Respondent testified that the racial slur was made

"under his breath" and not intended to be heard by students. He

testified that what he said was "you're going to drive a nigga

crazy," and that the comment was directed to himself, not the

student. (Tr. 195)

13. The Respondent testified that he told a student "If I

was yo ur dad, I would ring your neck," because the student was

disruptive, defiant and not following directions. (Tr. 195 - 196,

218 - 219)

14. In December 2001, a student was playing with a toilet

valve and water was squirting out on the floor in the boys'

locker room. After the student left the stall and walked over

towards him, the Respondent grabbed him by the neck and shoved

him. After an investigation by the school's police, the charge

was found to be substantiated. (Tr. 69 - 88, 113 - 117 and P - 18)

The Respo ndent testified that he grabbed the student's shoulder

but did not push him. (Tr. 201 - 202) Although the student had

stopped spraying water at the time he confronted him, the

Respondent considered his intervention appropriate because the

wet floor created a safety concern. (Tr. 205, 214 - 215, 217 - 218)

15. At the same time, other students began slamming locker

doors in the locker room. The Respondent called the students

involved "a bunch of assholes," and said "If you do this one more

time, I could lose m y job for hurting you." (Tr. 69 - 88, 113 - 117

and P - 18)

16. About the same time, the Assistant Principal at Lawton

Chiles Middle School, Alberto Iber, received a complaint from the

parents of another student. While he was playing with an injured

student's aluminum walker, the Respondent grabbed him to try to

retrieve the walker and pushed him to the ground. He also said

to the student "fuck you." Charges of corporal punishment and

the use of profanity were substantiated. (Tr. 93 - 112 and P - 19)

17. The R espondent admitted that he pulled the student down

after saying "This is going to be the final time I ask you to sit

down." (Tr. 204) He said he used the "f" word under his voice.

(Tr. 205)

18. When the Respondent was first assigned to Lawton Chiles

M iddle School, the Principal, Karen Robinson met with him to

discuss the previous incidents at North Glade Elementary School

and to discuss expectations that he would abide by the School

Board's rules. Each time there was an incident involving the

Responde nt, Ms. Robinson called the District's Professional

Standards Office which referred the matters to the school's

police to conduct the personnel investigations. (Tr. 119 - 133,

219 - 220)

19. After the fourth personnel investigation at Lawton

Chiles Middle S chool, Ms. Robinson contacted the personnel

director for the region. She was concerned that the incidents

involving the Respondent were escalating from inappropriate

verbal to more serious physical interactions with students. As a

result, she recommended that Respondent's employment be

terminated. (Tr. 135 - 136 and P - 21)

20. Barbara Moss, the District Director in the School

Board's Office of Professional Standards, agreed with

Ms. Robinson's and the region personnel director's

recommendations to terminat e the Respondent's employment.

(Tr. 164 - 165, P - 22 and 23)

21. Ms. Moss, in turn, recommended that the School Board

terminate Respondent's employment. She met with Respondent to

notify him of the proposed action. (Tr. 165 - 166)

22. The Superintendent of Schools also recommended that the

School Board take action to terminate Respondent's employment and

notified the Respondent of that recommendation. (P - 24 and 25)

23. The Superintendent also notified the Respondent when

the School Board, at its meeting o n June 19, 2002, took action to

suspend and initiate dismissal proceedings against him for

misconduct in office, gross insubordination, willful neglect of

duty, and violation of School Board Rules 6Gx13 - 4.108, on

Violence in the Workplace; 6Gx13 - 4A - 1.21, o n Responsibilities and

Duties; and 6Gx13 - 5D - 1.07, Corporal Punishment - Prohibited.

Notice of the availability of an administrative hearing to

contest the action was also included. (P - 24 through 26)

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Sections 120.569 and 120.57(1),Florida Statutes.

25.

25. The School Board has the burden of proving the

allegations in the Administrative Complaint by a prepon derance of

the evidence. See Allen v. School Board of Dade County , 571 So.

2d 568, 569 (Fla. 3d DCA 1990); and Dileo v. School Board of Lake

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

26. Rule 6B - 4.009(3), Florida Administrative Code, states

that:

Miscon duct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

27. Rule 6B - 4.009(4), Florida Administrative Code, provides

that:

Gross insubordination or willful neglect of

duties is defined as a constant or continuing

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority.

28. School Board Rules 6GX13 - 5D - 1.07 and 6Gx13 - 4 - 1.08

prohibit corporal punishment and violence in the workplace. In

Subsection 228.041(27), Florida Statutes (2001), corporal

punishment is defined as:

. . . the moderate use of physical force or

physical contact by a teacher or principal as

may be necessary to maintain discipline or to

enforce school rule. However, the term

"corporal punishment" does not include the

use of such reasonable force by a teacher or

principal as may be necessary for self -

protection or to protect other students from

disruptive students.

29. The School Board met its burden of proving that the

Respondent committed repeated acts of misconduct , by using

inappropriate and profane language around or directed towards

students.

30. The School Board further proved that the Respondent was

grossly insubordinate, by repeatedly ignoring warnings from two

principals at two schools about his verbal and p hysical abuse of

students.

31. The School Board further proved that the Respondent

violated its policies against violence in the workplace and

against corporal punishment in all of the substantiated cases of

corporal punishment. In none of those cases wa s the Respondent's

use of force necessary for his self - protection or to protect

other students from disruptive students.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order

sustaining Respondent's suspension without pay on June 19, 2002,

terminating Respondent's employment, and denying the Respondent

back pay.

DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee,

Leon County, Florida.

___________________________________

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May, 2003.

COPIES FURNISHED :

Merritt R. Stierhelm , Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

1244 Turlington Building

Tallahassee, Florida 323 99 - 0400

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire

United Teachers of Dade - Law Department

2200 Biscayne Boulevard, 5th Floor

Miami, Florida 33137

NOTI CE 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 t his case.