02-003501 Miami-Dade County School Board vs. Juan Carlos Leyva Status: Closed Recommended Order on Tuesday, April 15, 2003.

Summary: Profanity and threat against supervisor justified the suspension of Respondent`s employment without pay for 30 days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3501

)

JUAN CARLOS LEYVA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to not ice, a final hearing was conducted on

January 9, 2003, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Denis e Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast 2nd Avenue

Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

STATEMENT OF THE ISSUE

Whether Respondent, a maintenance technician employed by

Petitioner, committed the o ffenses alleged in the Notice of

Specific Charges and, if so, the penalties that should be

imposed.

PRELIMINARY STATEMENT

Jose Luis Hernandez supervises Respondent and approximately

ten other maintenance technicians for WLRN, the radio/television

station operated by Petitioner. Mr. Hernandez and Respondent

have had a fractious working relationship for several years.

The alleged incident that underpins this proceeding occurred

May 1, 2001. Petitioner contends that Respondent threatened

Mr. Hernandez wit h bodily harm on that date. Respondent denies

the alleged incident included a threat.

Following an investigation by Petitioner's police

department, Petitioner suspended Respondent's employment without

pay for a period of 30 days. Respondent challenged Pe titioner's

action, the matter was referred to the Division of

Administrative Hearings, and this proceeding followed.

Petitioner filed a Notice of Specific Charges containing

three counts. Count One alleged a violation of School Board

Rule 6Gx13 - 4 - 1.08, pertaining to violence in the workplace.

Count Two alleged a violation of School Board Rule 6Gx13 - 4A -

1.21, pertaining to expected employee conduct. Count Three

alleged that Respondent engaged in "Misconduct in Office" as

defined by Rule 6B - 4.009(3), Flor ida Administrative Code.

Petitioner did not pursue the theory set forth in Count Three at

the final hearing, in its Pre - hearing Stipulation, or in its

Proposed Recommended Order. Consequently, Count Three is deemed

abandoned.

At the final hearing, Peti tioner presented the testimony of

Mr. Hernandez, Respondent, Arnold C. Perez, Mario Victores, and

Virginia Bradford. Mr. Perez is a maintenance technician

supervised by Mr. Hernandez. Mr. Victores is a member of

Petitioner's police department. Ms. Bradf ord is an Assistant

Superintendent with Petitioner's Office of Professional

Standards. Petitioner presented nine sequentially numbered

exhibits, each of which was admitted into evidence.

Respondent also testified during his case in chief, and

presented th e additional testimony of Steve Braddy, another

member of the maintenance technician crew supervised by

Mr. Hernandez. Respondent offered three sequentially numbered

exhibits, each of which was admitted into evidence.

A Transcript of the proceedings was filed on March 10,

2003. Each party filed a Proposed Recommended Order, which has

been duly - considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner

has been a duly - constituted school board charged with the duty

to operate, control, and supervise all free public schools

within the school district of Miami - Dade County, Florida,

pursuant to Article IX, Florida Constitution, and Section

230.03(1), Florida Statutes ( 2001).

2. At all times relevant to this proceeding, Respondent

was employed by Petitioner as a maintenance technician and was

assigned to WLRN, the radio/television station operated by

Petitioner.

3. At all times relevant to this proceeding, Mr. Hern andez

supervised a work crew consisting of Respondent and ten other

maintenance technicians. At the time of the final hearing,

Respondent, Mr. Hernandez, and several other members of the work

crew had worked together since 1990. The work crew performed

m aintenance work at the radio/television station and at the

various schools and other facilities that received signals from

the radio/television station. At the times pertinent to this

proceeding, Respondent had his own truck that he used to travel

to his various work assignments.

4. Respondent is a frustrated employee who does not get

along well with his co - workers or with Mr. Hernandez.

Respondent believes himself to be more qualified than his

supervisor and his co - workers, and he is ever vigilant for

improperly performed work by the maintenance crew. Respondent

keeps a copy of the job description for the position held by

Mr. Hernandez, which he reviews on a regular basis to determine

if Mr. Hernandez is fulfilling his responsibilities. Over the

cour se of his employment with Petitioner, Respondent has had a

history of threatening co - workers and other School Board

employees. Prior to May 1, 2001, Respondent had threatened

Mr. Hernandez with bodily harm on two occasions. As a result of

his threats aga inst Mr. Hernandez and other School Board

employees, Respondent had been referred on more than one

occasion to Petitioner's Employee Assistance Program. In 1995

Petitioner required Respondent to submit to a psychological

evaluation 1/ to determine Respo ndent's fitness for work.

5. For the two and a half weeks immediately preceding

May 1, 2001, Respondent was off work. During that time

Respondent's work truck was idle. On May 1, 2001, when

Respondent returned to work, an incident occurred between Mr.

H ernandez and Respondent that underpins this proceeding. 2/

While making the workday assignments on the morning of May 1,

2001, Mr. Hernandez informed Respondent that his work truck had

been scheduled for routine maintenance that day. Respondent

became u pset because the truck had been idle for the previous

two and a half weeks, and he believed that the maintenance

should have been performed during that period.

6. Mr. Hernandez assigned Respondent to work with

Mr. Braddy, but Respondent refused that ass ignment. 3/

7. Respondent walked over to the maintenance garage with a

tape recorder to have the mechanic state on tape when

Respondent's truck would be ready.

8. Respondent then returned to the area where

Mr. Hernandez was still making assignments. Mr. Hernandez told

Respondent to go work with Rafael Montesino, another member of

the work crew. Respondent refused that assignment. When he

heard the assignment and Respondent's refusal, Mr. Montesino

told Mr. Hernandez he would not work with Respondent and that he

would take the day off if he had to do so.

9. By the time Mr. Hernandez began to leave the area to go

to his own work assignment, the other members of the crew had

left for their assignments. Respondent did not have an

assignment and he re mained in the area. As Mr. Hernandez was

leaving the area, Respondent verbally assaulted Mr. Hernandez in

a hostile, threatening manner. Respondent cursed Mr. Hernandez

and threatened to kill him. Mr. Hernandez drove off from the

confrontation.

10. M r. Hernandez filed a complaint with his supervisors

regarding Respondent's behavior of May 1, 2001, by Memorandum

dated May 2, 2001. Following an investigation Detective Mario

Victores of Petitioner's school police prepared a report styled

Preliminary Per sonnel Investigation (the report). The report

substantiated two alleged violations of School Board rules by

Respondent: Rule 6Gx13 - 4A - 1.21, pertaining to responsibilities

and duties of School Board employees and Rule 6Gx13 - 4.108,

pertaining to violence i n the workplace.

11. Victoria Bradford held a conference - for - the - record

with Respondent to discuss the incident of May 1, 2001. Based

primarily on Ms. Bradford’s recommendation, 4/ Respondent was

referred to Petitioner’s Employee Assistance Program a nd his

employment was suspended without pay for a period of 30 days.

12. Respondent is a non - probationary "educational support

employee" within the meaning of Section 231.3605, Florida

Statutes, which provides, in pertinent part, as follows:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system . . . who by virtue of his or her

position of employment is not required to be

certified by the Department of Education or

district school boa rd pursuant to

s. 231.1725. . . .

(b) "Employee" means any person employed

as an educational support employee.

(c) "Superintendent" means the

superintendent of schools or his or her

designee.

(2)(a) Each educational support employee

shall be emplo yed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

prob ationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school board rule in cases where a

collectiv e bargaining agreement does not

exist . . .

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportu nity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

13. At the times material to th is proceeding, Respondent

was a member of the American Federation of State, County and

Municipal Employees (AFSCME) collective bargaining unit. AFSCME

and Petitioner have entered into a Collective Bargaining

Agreement (CBA), which in Article II, Section 3 , provides that

members of the bargaining unit may be disciplined for "just

cause." The CBA does not define the term "just cause."

14. Article XI, Section 1A of the CBA provides for

progressive discipline as follows:

A. . . . Whenever an employee . . .

violates any rule, regulation, or policy,

that employee shall be notified by his/her

supervisor, as soon as possible, with the

employee being informed of the . . . rule,

regulation or policy violated. An informal

discussion with the employee shall oc cur

prior to the issuance of any written

disciplinary action. Progressive discipline

should be followed, however, in

administering discipline, the degree of

discipline shall be reasonably related to

the seriousness of the offense and the

employee's reco rd.

Therefore, disciplinary steps may include:

1. verbal warning;

2. written warning (acknowledged);

3. Letter of reprimand;

4. Suspension/demotion; and

5. Dismissal.

15. Article XI, Section 3 of the CBA provides as follows:

3. In those cases where any employee has

not complied with the Board's policies

and/or department regulations, but the

infraction is not deemed serious enough to

recommend dismissal, the department head may

recommend suspension up to 30 days without

pay . The Superintendent must approve all

suspensions.

16. School Board Rule 6Gx13 - 4A - 1.21 states in pertinent

part that:

All persons employed by The School Board

of Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

17. School Board Rule 6Gx13 - 4 - 1.08 provides as follows:

Nothing is more import ant to Miami - Dade

County Schools (DCPS) than protecting the

safety and security of its students and

employees and promoting a violence - free work

environment. Threats, threatening behavior,

or acts of violence against any students,

employee, visitors, gues ts, or other

individuals by anyone on DCPS property will

not be tolerated. Violations of this policy

may lead to disciplinary action which

includes dismissal, arrest, and/or

prosecution.

Any person who makes substantial threats,

exhibits threatening be havior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropriate response. This response may

include, but is not limited to, suspension

and/or termination of any business

relationship, reassignment of job duties,

suspension or termination of employment,

and/or criminal prosecution of the person or

persons involved.

Dade County Public School employees have a

right to work in a safe environment.

Violence or the threat of violence by or

against students and employees will not be

tolerated.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matt er of and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

19. Pursuant to Section 231.3605(2)(b), Florida Statutes,

Petitioner has the authority to discipline Respondent’s

employment for the grounds set forth in the applicable

collective bargaining agreement, which is the CBA. Any such

discipline must be for "just cause." The School Board has the

burden of proving the allegations in the Notice of Specific

Charges by a preponderance of the evidence. Allen v. School

Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

Dileo v. School Board of Lake County , 569 So. 2d 883 (Fla. 3d

DCA 1990). The CBA does not impose a more stringent burden of

proof on the School Board.

20. Petitioner established by the requi site standard that

Respondent violated School Board Rule 6Gx13 - 4A - 1.21 pertaining

to employee conduct. Respondent's profane, threatening diatribe

against Mr. Hernandez is wholly inconsistent with behavior

expected of a School Board employee. That violati on constitutes

"just cause" to discipline Respondent's employment.

21. Petitioner also established by the requisite standard

that Respondent violated School Board Rule 6Gx13 - 4 - 1.08

pertaining to violence in the workplace. Respondent's threats

of bodily harm directed towards Mr. Hernandez constitute "just

cause" to discipline his employment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and the Conclusions of Law set

forth in this Recommended Order. It is further RECOMMENDED that

the final order uphold the suspension of Respondent's employment

for 30 days without pay.

DONE AND ENTERED this 15th day of April, 2003, in

Tallahassee, Leo n County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of April, 2003.

ENDNOTES

1/ The psychological evaluation is considered by the

undersigned to be dated and has not been considered in

de termining the credibility of the witnesses to this proceeding.

2/ The findings that follow are based on the testimony of

Mr. Hernandez, which the undersigned has credited over that of

Respondent based on the demeanor of the witnesses, Respondent's

patt ern of disruptive, defiant, and threatening behavior over

the years, and Respondent's hostility towards Mr. Hernandez.

Mr. Hernandez testified, credibly, that he reported the incident

of May 1, 2001, to his supervisors out of concern for his and

his crew' s safety. The undersigned has also considered that Mr.

Hernandez declined the opportunity to file criminal charges

against Respondent, which he would not have done had he been

"out to get" Respondent.

3/ Respondent was not charged with insubordination.

4/ Ms. Bradford could have recommended that Respondent's

employment be terminated, but she testified that she wanted to

give him one more chance.

COPIES FURNISHED :

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

N orth Miami, Florida 33169

Juan Carlos Leyva

5225 West 24 Way

Hialeah Gardens, Florida 33016

Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast 2nd Avenue

Suite 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent

Miami - Dade County School Board

1450 Northeast 2nd Avenue

Suite 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT T O 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.