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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MIAMI - DADE COUNTY SCHOOL BOARD,

14Petitioner,

15vs. Case No. 17 - 0663TTS

21CHEVAS CLEMENTS,

23Respondent.

24_______________________________/

25RECOMMENDED ORDER

27On May 9 , 2017 , Robert E. Meale, Administrative Law Judge

37of the Division of Administrative Hearings (DOAH), conducted the

46final hearing by videoconference in Miami and Tallahassee,

54Florida.

55APPEARANCES

56For Petitioner: Kim M. Lucas , Esquire

62Miami Dade County Public Schools

67School Board Attorney's Office

711450 Northeast Second Avenue, Suite 430

77Miami , Florida 33132

80For Respondent : Mark Herdman, Esquire

86Herdman & Sakellarides, P.A.

9029605 U.S. Highway 19 North, Suite 110

97Clearwater, Florida 33761

100STATEMENT OF THE ISSUE

104The issue is whether Petitioner has just cause to suspend

114Respondent without pay for thirty days for misconduct in office,

124as provided in Florida Administrative Code Rule 6A - 5.056(2 ) and

136School Board Policies 3210, 3210.01, and 3213, for using

145profanity toward a student and engaging with the student's

154parent in a violent confrontation with profanity and t hreats.

164PRELIMINARY STATEMENT

166The Notice of Spec ific Charges dated April 7, 2017 , alleges

177that Petiti oner employed Respondent in 1999 . The Notice of

188Specific Charges alleges that , in June 2016 , Respondent used

197profanity toward a student, whom he also called names. Later,

207on the same day, Respondent allegedly engaged with the student's

217parent using profanity and issuing threats and then refused to

227leave the area when instructed to do so by the principal

238an d assistant principal. The Notice of Specific Charges

247alleges that Respondent committed misconduct in office by

255violating Florida Administrative Code Rules 6A - 5.056(2) and

2646A - 10.081(1)(a) - (c), (2)(a)1 . and 5. - 7., and (c)4., as well as

280various provisions of the above - cited School Board policies.

290On January 25, 2017 , Petitioner suspended Respondent

297without pay for thirty days. On January 31, 2017 , Respondent

307requested a formal administrative hearing.

312At the hearing, Petitioner called four witnesses and

320of f ered into evidence 21 exhibits: Petitioner Exhibits 1

330through 11, 18, and 30 through 38 . Respondent called two

341witness es and offered into evidence three exhibits : Respondent

351Exhibits 2 through 4 . All exhibits were admitted excep t

362Petitioner Exhibits 18 and 30 through 34 and Respondent

371Exhibit 4 , which were proffered .

377The court reporter filed the transcript on June 26, 2017 ,

387and the parties filed proposed recommended orders by July 6,

3972017 .

399FINDINGS OF FACT

4021. For the 2015 - 16 sc hool year, Petitioner employed

413Respondent as a physical education teacher at Homestead Middle

422School. On May 27, 2016, Respondent and another physical

431education teacher, George Malvestutl, had instructed the

438students to leave the girls' locker room after physical

447education class. About 20 minutes later, the teachers saw a

457student hiding in the locker room. The teachers entered the

467locker room and found three students still in the locker room

478without permission.

4802. When Respondent directed the students t o leave the

490locker room, one or more of the students became belligerent and

501yelled at him in defiance. Mr. Malvestutl called security to

511escort the girls out of the locker room. About one minute after

523Respondent had first engaged with the students and be fore

533security could arrive, the students left the locker room, but

543the situation escalated when the teachers directed the students

552to report to the office. At this point, the students used

563profanity toward Respondent, and one of them threatened to call

573he r father to come to school and "kick [Respondent's] ass."

584After several minutes, they left the area and walked toward

594their class in direct defiance of the teachers' directive to

604report to the office.

6083. Respondent did not have time to report the inciden t

619to the office because he had a class to teach. But, about

63130 minutes after the confrontation had ended, Respondent

639received a call from the principal's secretary directing

647Respondent to come to the office. When he entered the office,

658the secretary po inted him to a man who was waiting to see

671Respondent.

6724. Without introducing himself or informing himself about

680what had happened, the man immediately threatened to "kick

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

697Respondent answered that the man needed to learn about what had

708taken place and walked away from the man, leaving the office.

719The man followed Respondent into the hallway and, standing about

729ten feet from Respondent, continued to threaten Respondent, who

738suggested that the daughter was misbehaving due to the

747misbehavior of the father, who was behaving "like an idiot,"

757Respondent added.

7595. The exchange was briefly heat ed , although probably more

769while in the office than in the hallway. The exchange in the

781hallway lasted no more than one minute, and the exchange in the

793office was even briefer. At no time did either man place a hand

806on the other. Eventually , the angry father calmed, as he

816realized that his daughter had not told him the entire story.

8276. During the exchange in the hallway, the assistant

836principal entered the hallway, but did not say anything and

846quickly retreated to his office to call the p olice, although the

858entire incident had ended before the police arrived on the

868scene. The principal entered the hallway and, at one point,

878blocked the father's path toward Respondent, but the principal

887did not say anything either. After the incident, Res pondent

897asked the principal if he could go home for the day, but the

910principal asked him to remain if he could, and Respondent agreed

921to remain at school. Later that day, the principal visited

931Respondent and asked him if he was okay. Respondent replied

941t hat he was fine, and the principal smiled.

9507. On direct, the principal testified that Respondent

958uttered profanity during his confrontation with the parent --

967specifically using the "f" word several times and the "n" word

978once. Respondent, who is black, de nied the use of any

989profanity, including these words. The principal's credibility

996was undermined by the fact that he omitted these important

1006details when he gave his statement to the school police a few

1018days after the incident.

10228. Based on the testimony that has been credited,

1031Petitioner has failed to prove that Respondent mishandled in any

1041way the two exchanges with the angry parent, who clearly either

1052misunderstood what his daughter had told him or was misled by

1063his daughter.

1065CONCLUSIONS OF LAW

10689 . DO AH has jurisdiction of the subject matter.

1078§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

108610 . Petitioner bears the burden of proving the material

1096allegations by a preponderance of the evidence. § 120.57(1)(j);

1105Allen v. Sch . Bd . of Dade C n ty . , 571 So. 2d 568 (Fla. 3d DCA

11241990) (teacher - dismissal case).

112911 . Petitioner may dismiss an employee for just cause.

1139§ 1012.33(1)(a) and (6)(a) . Just cause includes misconduct in

1149office . § 1012.33(1)(a) . Rule 6A - 5.056( 2 ) defines " misco nduct

1163in office " as behavior that disrupts the students' learning

1172environment or that reduces the ability of the teacher or his

1183colleagues to perform their duties effectively, as well as any

1193violation of the Code of Ethics, as set forth in r ule 6A - 10.080;

1208the Principles of Professional Conduct, as set forth in r ule 6A -

122110.081; or the School Board policies.

12271 2 . Petitioner failed to prove that Respondent mishandled

1237his exchanges with the irate father . After the father angrily

1248confronted Respondent in the office, Respondent sensibly

1255retreated, but the parent followed Respondent into the hallway.

1264In the hallway, Respondent briefly tried to give the father some

1275needed perspective and appears to have been able to de - escal ate

1288the situation somewhat. The limited involvement of the

1296principal was directed toward preventing the father, not

1304Respondent, from initiating physical contact.

13091 3 . Section 1012.33(6)(a) provides that, when a school

1319board fails to sustain the charges un derlying a dismissal of

1330suspension of an instructional employee, the school board must

1339reinstate the employee with back salary.

1345RECOMMENDATION

1346It is

1348RECOMMENDED that Petitioner enter a final order finding

1356that the 30 - day suspension of Respondent without pa y lacked just

1369cause and, pursuant to section 1012.33(6)(a), reinstate

1376Respondent, if necessary, and pay Respondent his back salary.

1385DONE AND ENTERED this 7th day of July , 2017 , in

1395Tallahassee, Leon County, Florida.

1399S

1400ROBERT E. MEALE

1403Administrative Law Judge

1406Division of Administrative Hearings

1410The DeSoto Building

14131230 Apalachee Parkway

1416Tallahassee, Florida 32399 - 3060

1421(850) 488 - 9675

1425Fax Filing (850) 921 - 6847

1431www.doah.state.fl.us

1432Filed with the Clerk of the

1438Division of Administrative Hearings

1442this 7th day of July , 2017 .

1449COPIES FURNISHED:

1451Mark Herdman, Esquire

1454Herdman & Sakellarides, P.A.

1458Suite 110

146029605 U.S. Highway 19 North

1465Clearwater, Florida 33761

1468(eServed)

1469Kim M. Lucas, Esquire

1473Miami Dade County Public Schools

1478School Board Attorney's Office

14821450 Northeast Second Avenue, Suite 430

1488Miami, Florida 33132

1491(eServed)

1492Matthew Mears, General Counsel

1496Department of Education

1499Turlington Building, Suite 1244

1503325 West Gaines Street

1507Tallahassee, Florida 32399 - 0400

1512(eServed )

1514Pam Stewart , Commissioner of Education

1519Department of Education

1522Turlington Building, Suite 1514

1526325 West Gaines Street

1530Tallahassee, Florida 32399 - 0400

1535(eServed)

1536Alberto M. Carvalho, Superintendent

1540Miami Dade County School Board

15451450 Northeast Second Avenue, Suite 912

1551Miami, F lorida 33132 - 1308

1557NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1563All parties have the right to submit written exceptions within

157315 days from the date of this Recommended Order. Any exceptions

1584to this Recommended Order should be filed with the agency that

1595will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/23/2017
Proceedings: Agency Final Order
PDF:
Date: 08/23/2017
Proceedings: School Boards Final Order filed.
PDF:
Date: 08/23/2017
Proceedings: Final Order of the School Board of Miami-Dade County, Florida filed.
PDF:
Date: 08/23/2017
Proceedings: Final Order of the School Board of Miami-Dade County, Florida filed.
PDF:
Date: 07/07/2017
Proceedings: Recommended Order
PDF:
Date: 07/07/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/07/2017
Proceedings: Recommended Order (hearing held May 9, 2017). CASE CLOSED.
PDF:
Date: 07/06/2017
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 07/06/2017
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 06/26/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 05/19/2017
Proceedings: Petitioner's Proffer of Exhibits and Testimony Excluded from Final Hearing filed.
Date: 05/09/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/08/2017
Proceedings: Petitioner's Amended Witness List filed.
Date: 05/05/2017
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 05/04/2017
Proceedings: Petitioner's Notice of Filing Additional Exhibits and Petitioner's Amended List of Exhibits filed (exhibits not available for viewing).  Confidential document; not available for viewing.
PDF:
Date: 05/02/2017
Proceedings: Respondent's Exhibit List filed.
PDF:
Date: 05/02/2017
Proceedings: Respondent's Witness List filed.
Date: 05/02/2017
Proceedings: Notice of Filing Petitioner's List of (Proposed) Exhibits filed (exhibits not available for viewing).
PDF:
Date: 05/01/2017
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 05/01/2017
Proceedings: Notice of Filing Petitioner's List of Exhibits filed.
PDF:
Date: 04/07/2017
Proceedings: (Petitioner's) Notice of Unavailability filed.
PDF:
Date: 04/07/2017
Proceedings: Notice of Specific Charges filed.
PDF:
Date: 02/08/2017
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for May 9, 2017; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 02/07/2017
Proceedings: Joint Motion to Continue and Reschedule Final Hearing filed.
PDF:
Date: 02/07/2017
Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 9, 2017; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 02/07/2017
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 02/01/2017
Proceedings: Initial Order.
PDF:
Date: 01/31/2017
Proceedings: Agency action letter filed.
PDF:
Date: 01/31/2017
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 01/31/2017
Proceedings: Letter to Chevas Clements from Celia Rubio regarding the recommendation of the Superintendent filed.
PDF:
Date: 01/31/2017
Proceedings: Referral Letter filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
01/31/2017
Date Assignment:
02/01/2017
Last Docket Entry:
08/23/2017
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
TTS
 

Counsels

Related Florida Statute(s) (3):