17-000663TTS Miami-Dade County School Board vs. Chevas Clements Status: Closed Recommended Order on Friday, July 7, 2017.

Summary: Petitioner failed to prove that physical education teacher behaved inappropriately in two exchanges with an angry parent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 0663TTS

CHEVAS CLEMENTS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 9 , 2017 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Kim M. Lucas , Esquire

Miami Dade County Public Schools

School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami , Florida 33132

For Respondent : Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to suspend

Respondent without pay for thirty days for misconduct in office,

as provided in Florida Administrative Code Rule 6A - 5.056(2 ) and

School Board Policies 3210, 3210.01, and 3213, for using

profanity toward a student and engaging with the student's

parent in a violent confrontation with profanity and t hreats.

PRELIMINARY STATEMENT

The Notice of Spec ific Charges dated April 7, 2017 , alleges

that Petiti oner employed Respondent in 1999 . The Notice of

Specific Charges alleges that , in June 2016 , Respondent used

profanity toward a student, whom he also called names. Later,

on the same day, Respondent allegedly engaged with the student's

parent using profanity and issuing threats and then refused to

leave the area when instructed to do so by the principal

an d assistant principal. The Notice of Specific Charges

alleges that Respondent committed misconduct in office by

violating Florida Administrative Code Rules 6A - 5.056(2) and

6A - 10.081(1)(a) - (c), (2)(a)1 . and 5. - 7., and (c)4., as well as

various provisions of the above - cited School Board policies.

On January 25, 2017 , Petitioner suspended Respondent

without pay for thirty days. On January 31, 2017 , Respondent

requested a formal administrative hearing.

At the hearing, Petitioner called four witnesses and

of f ered into evidence 21 exhibits: Petitioner Exhibits 1

through 11, 18, and 30 through 38 . Respondent called two

witness es and offered into evidence three exhibits : Respondent

Exhibits 2 through 4 . All exhibits were admitted excep t

Petitioner Exhibits 18 and 30 through 34 and Respondent

Exhibit 4 , which were proffered .

The court reporter filed the transcript on June 26, 2017 ,

and the parties filed proposed recommended orders by July 6,

2017 .

FINDINGS OF FACT

1. For the 2015 - 16 sc hool year, Petitioner employed

Respondent as a physical education teacher at Homestead Middle

School. On May 27, 2016, Respondent and another physical

education teacher, George Malvestutl, had instructed the

students to leave the girls' locker room after physical

education class. About 20 minutes later, the teachers saw a

student hiding in the locker room. The teachers entered the

locker room and found three students still in the locker room

without permission.

2. When Respondent directed the students t o leave the

locker room, one or more of the students became belligerent and

yelled at him in defiance. Mr. Malvestutl called security to

escort the girls out of the locker room. About one minute after

Respondent had first engaged with the students and be fore

security could arrive, the students left the locker room, but

the situation escalated when the teachers directed the students

to report to the office. At this point, the students used

profanity toward Respondent, and one of them threatened to call

he r father to come to school and "kick [Respondent's] ass."

After several minutes, they left the area and walked toward

their class in direct defiance of the teachers' directive to

report to the office.

3. Respondent did not have time to report the inciden t

to the office because he had a class to teach. But, about

30 minutes after the confrontation had ended, Respondent

received a call from the principal's secretary directing

Respondent to come to the office. When he entered the office,

the secretary po inted him to a man who was waiting to see

Respondent.

4. Without introducing himself or informing himself about

what had happened, the man immediately threatened to "kick

[Respondent's] ass" and said something about his daughter.

Respondent answered that the man needed to learn about what had

taken place and walked away from the man, leaving the office.

The man followed Respondent into the hallway and, standing about

ten feet from Respondent, continued to threaten Respondent, who

suggested that the daughter was misbehaving due to the

misbehavior of the father, who was behaving "like an idiot,"

Respondent added.

5. The exchange was briefly heat ed , although probably more

while in the office than in the hallway. The exchange in the

hallway lasted no more than one minute, and the exchange in the

office was even briefer. At no time did either man place a hand

on the other. Eventually , the angry father calmed, as he

realized that his daughter had not told him the entire story.

6. During the exchange in the hallway, the assistant

principal entered the hallway, but did not say anything and

quickly retreated to his office to call the p olice, although the

entire incident had ended before the police arrived on the

scene. The principal entered the hallway and, at one point,

blocked the father's path toward Respondent, but the principal

did not say anything either. After the incident, Res pondent

asked the principal if he could go home for the day, but the

principal asked him to remain if he could, and Respondent agreed

to remain at school. Later that day, the principal visited

Respondent and asked him if he was okay. Respondent replied

t hat he was fine, and the principal smiled.

7. On direct, the principal testified that Respondent

uttered profanity during his confrontation with the parent --

specifically using the "f" word several times and the "n" word

once. Respondent, who is black, de nied the use of any

profanity, including these words. The principal's credibility

was undermined by the fact that he omitted these important

details when he gave his statement to the school police a few

days after the incident.

8. Based on the testimony that has been credited,

Petitioner has failed to prove that Respondent mishandled in any

way the two exchanges with the angry parent, who clearly either

misunderstood what his daughter had told him or was misled by

his daughter.

CONCLUSIONS OF LAW

9 . DO AH has jurisdiction of the subject matter.

§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

10 . Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. § 120.57(1)(j);

Allen v. Sch . Bd . of Dade C n ty . , 571 So. 2d 568 (Fla. 3d DCA

1990) (teacher - dismissal case).

11 . Petitioner may dismiss an employee for just cause.

§ 1012.33(1)(a) and (6)(a) . Just cause includes misconduct in

office . § 1012.33(1)(a) . Rule 6A - 5.056( 2 ) defines " misco nduct

in office " as behavior that disrupts the students' learning

environment or that reduces the ability of the teacher or his

colleagues to perform their duties effectively, as well as any

violation of the Code of Ethics, as set forth in r ule 6A - 10.080;

the Principles of Professional Conduct, as set forth in r ule 6A -

10.081; or the School Board policies.

1 2 . Petitioner failed to prove that Respondent mishandled

his exchanges with the irate father . After the father angrily

confronted Respondent in the office, Respondent sensibly

retreated, but the parent followed Respondent into the hallway.

In the hallway, Respondent briefly tried to give the father some

needed perspective and appears to have been able to de - escal ate

the situation somewhat. The limited involvement of the

principal was directed toward preventing the father, not

Respondent, from initiating physical contact.

1 3 . Section 1012.33(6)(a) provides that, when a school

board fails to sustain the charges un derlying a dismissal of

suspension of an instructional employee, the school board must

reinstate the employee with back salary.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding

that the 30 - day suspension of Respondent without pa y lacked just

cause and, pursuant to section 1012.33(6)(a), reinstate

Respondent, if necessary, and pay Respondent his back salary.

DONE AND ENTERED this 7th day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 7th day of July , 2017 .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Kim M. Lucas, Esquire

Miami Dade County Public Schools

School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed )

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, F lorida 33132 - 1308

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 the Final Order in this case.