06-003043 Miami-Dade County School Board vs. Eric Cooper Status: Closed Recommended Order on Monday, April 2, 2007.

Summary: Respondent was terminated for two incidents of insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3043

)

ERIC COOPER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. M eale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on November 9, 2006.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

Miami - Dade County School Board.

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Robert W. Holland, Esquire

5955 Northeast Fourth Court

Miami, Florida 33137

STATEMENT OF TH E ISSUE

The issue is whether Petitioner may terminate Respondent's

employment for just cause.

PRELIMINARY STATEMENT

By Petitioner's Notice of Specific Charges filed

September 20, 2006, Petitioner alleged that it originally

employed Respondent in August 1 986 as a school monitor.

Petitioner allegedly employed Respondent, in May 1988, as a

trades helper and, in January 1996, as a journeyperson.

Petitioner alleged that, while employed as a journeyperson,

Respondent has engaged in rude and unseemly conduct,

demonstrated a lack of respect for supervisory authority, and

failed to comply with Petitioner's rules. The Notice of

Specific Charges describes numerous incidents, for which

Petitioner produced no admissible evidence.

However, Petitioner produced evid ence of two incidents

alleged in the Notice of Specific Charges. On May 12, 2005,

Respondent, reporting for a work assignment at Dario Middle

Community School, allegedly entered the school without

displaying his employee identification badge. When asked who he

was, Respondent allegedly replied in a loud voice that no one

had asked him to identify himself in the past. Edward R. Smith,

principal of the school, allegedly overheard the conversation

and asked Respondent to identify himself. Respondent allege dly

replied that his identification badge was in the "damn truck."

While Mr. Smith allegedly escorted Respondent to his truck,

Respondent continued a cellphone conversation during which he

was yelling and uttering profanity. Following this incident,

Mr. Smith allegedly requested that Petitioner not reassign

Respondent to his school.

The second alleged incident as to which Petitioner produced

evidence took place on September 7, 2005. Respondent, reporting

for a work assignment at Everglades K - 8 Center, a llegedly became

irate and refused to sign in as a "visitor" at the request of

the school security monitor. Dr. Doylene Tarver, principal of

the school, allegedly told Respondent to sign in or leave the

school grounds, and Respondent allegedly replied by a sking if

she had purchased her degree. Following the incident,

Dr. Tarver allegedly requested that Petitioner not reassign

Respondent to her school.

The Notice of Specific Charges alleges Petitioner has just

cause to terminate Respondent's employment bec ause he has is

guilty of a lack of respect for an employee's supervisor, in

violation of Article IV of the applicable labor contract; gross

insubordination or willful neglect of duty, in violation of

Florida Administrative Code Rule 6B - 4.009; unseemly cond uct and

the use of abusive or profane language, in violation of School

Board Rule 6Gx13 - 4A - 1.21; and deficient performance or

nonperformance of job duties, in violation of Article IV of the

applicable labor contract.

At the hearing, Petitioner called six witnesses and offered

into evidence 32 exhibits: Petitioner Exhibits 1 - 5 and 7 - 33.

Respondent called three witnesses and offered into evidence one

exhibit: Respondent Exhibit 1. All exhibits were admitted

except Petitioner Exhibits 1 - 2, 5, 7 - 10, 13, 15 , and 19.

Petitioner Exhibits 3 - 4, 11 - 12, and 20 were admitted, but not

for the truth of their contents.

The court reporter filed the transcript on January 22,

2007. With the permission of the Administrative Law Judge,

Petitioner filed the transcripts o f two depositions on

January 29, 2007. Following two extensions for filing proposed

recommended orders, the parties filed their Proposed Recommended

Orders by February 19, 2007.

FINDINGS OF FACT

1. Respondent is a journeyman mason employed by Petitioner.

Th e school district is divided into large regions, and Respondent

is one of only two masons available to schools located within the

region to which he has been assigned. As a mason, Respondent

performs his work exclusively at school sites, rather than at a

centralized shop.

2. In May 2005, Edward Smith, then the principal of the

Dario Middle Community School, was in his office and overheard

Respondent involved in a loud verbal exchange. School clerical

staff had appropriately asked Respondent to present an emp loyee

identification badge prior to engaging in work within the school.

Respondent was in the office area preparing to perform some

masonry work, but, at the moment of the request, was shouting into

his cellphone at a representative of a lender with whom he was

conducting personal business. Respondent became angry at school

staff, when they persisted in asking that he present

identification despite his attempt to wave them away. Claiming

that he was concerned that he would lose reception and, thus, the

c all, Respondent did not want to interrupt his cellphone

conversation to deal with the request to present identification.

When staff continued to demand identification, Respondent's anger

spilled over toward school staff.

3. Mr. Smith approached Respondent an d demanded to see his

identification. Instead of responding to Mr. Smith's demand,

Respondent first uttered several profanities, including "shit" and

"fuck," to the lender's representative. After uttering these

profanities, Respondent turned his attentio n to Mr. Smith and told

him that his identification was in his truck.

4. Mr. Smith then escorted Respondent to his truck so he

could produce his badge. During this time, Respondent continued

his cellphone conversation, loudly and crudely denouncing the

per son with whom he was speaking. Respondent produced his school

identification in the truck.

5. Shocked at this unprecedented rudeness by a school

district employee, Mr. Smith immediately contacted Respondent's

supervisor and told him that he never wanted Resp ondent on his

campus again, even if it meant that something broken remained

broken.

6. Respondent's supervisor informed Respondent that this

type of behavior was unacceptable. On May 26, 2005, Respondent

received a reprimand for his behavior at Dario Middl e Community

School. The reprimand ordered Respondent, among other things, to

"[f]ollow all procedures and conduct yourself in a professional

manner at all facilities at all times" and "[w]ear your badge at

all times, sign in and out at the main office at each school

assigned as indicated in your employee handbook . . ., and not

engage in any inappropriate contact with students and staff."

7. In September 2005, Dr. Doylene Tarver, the principal of

Everglades K - 8 Center, overheard from her office Respondent

yel ling and screaming at her staff. Dr. Tarver left her office

and found Respondent angrily confronting the security guard, who

was insisting, in accordance with school rules, that Respondent

sign in as a visitor. This disruption took place in the presence

of after - care parents at the school to pick up their children.

8. Dr. Tarver approached Respondent, who demanded to know

who she was. After she identified herself as "Dr. Tarver,"

Respondent asked if she had been one of the school personnel

recently identifi ed in the media as having purchased her degree.

Dr. Tarver was understandably offended at this impertinence and

demanded that Respondent sign in. He did so and proceeded to

report to his work site at the school.

9. As had Mr. Smith four months earlier, Dr. Tarver

contacted Respondent's supervisor and requested that he not assign

Respondent to her school again. Like Mr. Smith, she had never

encountered such behavior from a school district employee.

10. Following a conference for the record on February 13,

200 6, Robert Brown, the Administrative Director of Maintenance

Operations recommended that the School Board terminate

Respondent's employment. On August 2, 2006, the School Board

suspended Respondent and initiated proceedings to terminate his

employment.

11. Re spondent's behavior disrupted the business of the

school in two respects. First, as the behavior transpired, school

staff and parents were distracted from their business at the

school, but, each time, the behavior was worse than a mere

distraction. Each of these incidents -- separated by only four

months -- combined a breach of security with a menacing display of

aggressive behavior. After failing to conform to simple security

procedures, Respondent did not immediately comply, but instead

became confrontatio nal, so as to suggest to school staff that the

security breach was escalating.

12. Second, both principals found it necessary to ensure

that Respondent never perpetrate another disruption at their

schools, so they reasonably demanded that Respondent's super visor

never reassign Respondent to their schools. The supervisor agreed

to do so, but this left two schools in the region without a mason

anytime that the other mason was unavailable due to another

assignment, vacation, or illness. Masonry work sometimes

constitutes emergency repairs and any delay in performing the work

could perpetuate a dangerous condition. Also, some masonry work

is a two - person job, and, for such jobs at the two affected

schools, Petitioner would have to find a mason from another reg ion

and assign him or her out - of - region.

13. For these reasons, Respondent's actions constituted

willful neglect of duty, unseemly and abusive conduct, and gross

insubordination. Twice in four months, Respondent ignored simple

security procedures at school s to which he had been assigned to

work. Twice in four months, Respondent refused to comply with

these procedures when asked to do so by school staff and instead

angrily confronted these school employees. Instead of getting to

work at the school sites to which he had been assigned, Respondent

disrupted the schools and presented himself as a risk to the

security of the students, staff, and parents at both sites.

Respondent's confrontation with the two principals, who were

trying to restore order and ensur e compliance with school security

rules, was gross insubordination, as was his failure to comply

with the simple, sensible directives in the reprimand that

followed the first incident. Additionally, the inability of

Petitioner to assign Respondent to two schools within his region

impeded his effectiveness as an employee and meant that the

performance of his duties would be deficient, at least in this

regard.

14. The collective bargaining agreement between Petitioner

and the Dade County School Maintenance Em ployee Committee in

effect at the time of these events was the 2002 - 06 contract. This

contract did not require progressive discipline, but Article IV of

the contract authorized Petitioner to terminate employees for

"just cause." Article XI, Section 1.a o f the contract provides

for discipline due to the violation of Respondent's rules.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction

over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.

(2006).

16. As an employee within the maintenance department,

Respondent is an "educational support employee," pursuant to

Section 1012.40(1)(a), Florida Statutes. As such, he may be

terminated by the School Board for reasons stated in the

collective bargaining agreement.

17. Respondent's Rule 6GX13 - 4A - 1.21(I) provides:

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 commu nity, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

18. Respondent's Rule 6GX13 - 4A - 1.213(III) requires that

Respondent's employees demonstrate respect for all persons. More

specifically, in Jacker v. School Board of Dade County, Florida ,

426 So. 2d 1149 (Fla. 3d DCA 1983) (per curiam), the court held

that Petitioner, which was authorized to discipline an employee

for "prope r cause," could discipline an employee for failing to

respect his employer, even if this requirement were absent from

the applicable contract or rule.

19. Petitioner must prove the material allegations by a

preponderance of the evidence. Dileo v. School Bo ard of Dade

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

20. Petitioner has proved just cause for the termination of

Respondent's employment.

RECOMMENDATION

It is

RECOMMENDED that The School Board of Miami - Dade County,

Florida enter a final order ter minating Respondent's employment.

DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee,

Leon County, Florida.

S

___________________________________

ROBERT E. ME ALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 April, 2007.

COPIES FURNISHED:

Dr. Rudolph F. Crew

Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Hon orable Jeanine Blomberg

Interim Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines S treet

Tallahassee, Florida 32399 - 0400

Ana I. Segura, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Robert Holland, Esquire

Law Offices of Robert W. Holland

5955 Northeast Fourth Court

Miami, Flo rida 33137

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 th e Final Order in this case.