19-004255TTS Polk County School Board vs. Hector Marrero Status: Closed Recommended Order on Wednesday, January 22, 2020.

Summary: Three years of absences exceeding available leave days after warnings were just cause to terminate employment even though absences were due to difficult family problems and related legal proceedings.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 19 - 4255TTS

HECTOR MARRERO ,

Respondent .

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (D ivision ) , heard this case

by video teleconference at locations in Tallahassee and Lakeland ,

Florida on November 14 , 201 9 .

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North

Suite 110,

Clearwater, Florida 33761 - 1538

STATEMENT OF THE ISSUE

Did the absenteeism of Respondent, Hector Marrero, amount to

just cause to terminat e his employment as a teacher with

Petitioner, Polk County School Board (Board) , u nder Article 4.4

of the County's Teacher Collective Bargaining Agreement

(Agreement)?

PRELIMINARY STATEMENT

By a letter that Mr. Marrero received on May 29, 2019,

Teddra J. Porteous, J.D., Associate Superintende nt for Human

Resource Services for the Board , advised Mr. Marrero that the

Superintendent had determined there was just cause to terminate

his employment and that s he would recommend termination to the

B oard . Mr. Marrero requested a hearing to contest his proposed

termination. On August 12, 2019, t he Board referred the matter

to the Division to conduct the hearing as provided in the

contract between the Division and the Board.

The undersigned scheduled the ma t ter for hearing to be held

September 24, 2019. Later the undersigned granted Mr. Marrero's

unopposed motion to continue and rescheduled the hearing for

November 14 , 2019. The hearing was held as scheduled.

The Board presented testimony from Tony Kirk and

Edgar Santiago. Board E xhibits 1 through 12 were admitted into

evidence. Mr. Marrero tes tified on his own behalf.

Mr. Marrero's E xhibits 1 through 8 were admitted into evidence.

The Transcript was filed on December 2, 2019. After

obtaining an extension of time for filing, the parties timely

filed P roposed R ecommended O rders. The undersigne d has

considered them in preparation of this Recommended Order.

FINDING S OF FACT

1. Mr. Marrero worked 20 some years in Polk County schools

as an art teacher. Most recently, he taught art to the students

of Palmetto Elementary School for eight years. T he Board

employed him pursuant to a professional services contract.

2. Mr. Marrero's home life was difficult for him and his

children. This was due to his wife's substance abuse, her

domestic violence toward Mr. Marrero, and her mistreatment of

their chi ldren. In 2016, these problems reached a crescendo .

3. Authorities filed criminal child abuse and domestic

violence charges against Mr. Marrero's wife. In October 2016,

the criminal charges were resolved by judgment that included a

prohibition against the wife possessing weapons , a prohibition

against the wife contact ing Mr. Marrero, 12 months' probation ,

and random drug tests of the wife .

4. The Department of Children and Families (DCF) intervened

to help protect Mr. Marrero's minor children. This resulted in

requirements for counseling, which Mr. Marrero fulfilled.

5 . In August 2016, Mr. Marrero began a dissolution of

marriage proceeding. It was contentious and abusive with

numerous issues related to the problems identified above. The

issues in clud ed critical child custody disputes. Th e disputes

were resolved with Mr. Marrero being given full - time custody with

the children and their mother permitted only supervised visits.

6 . Throughout this period , courts issued several

restraining orders aga inst the mother. Mr. Marrero , as the sole

responsible parent , cared for his daughters , ensuring their

continued participation in events at their separate schools.

7 . These demands and disruptions caused the absences

resulting in his proposed termination. The absence s described

below were to attend various court hearings, attend litigation

related conferences, attend required counseling sessions,

transport his daughter s to events, attend their events, and other

obligations arising from the legal and DCF i ssues created by the

behavior of Mr. Marrero's wife.

8 . The Polk County school system suffers from a significant

absenteeism problem. The Board employs over 13,000 people.

Approximately 9,000 of them are teachers or other instructional

staff. During t he 2018 - 2019 school year, the system imposed

attendance related discipline 302 times.

9 . The Polk County school system has taken several actions

to improve attendance. The actions include providing training

and guidance to school principals and other adm inistrative

employees to help them assist employees to manag e available leave

time. The actions also include promulgating guidelines for

principals and supervisory personnel to address absenteeism as a

disciplinary issue.

10 . A teacher's presence in th e classroom is a critical

part of the job. The interruption of continuity of instruction

that excessive absenteeism causes compromises student learning.

It also injures co - workers asked to cover the absent teacher's

duties. The entire school suffers as a result .

11 . The Agreement govern s the availability of paid leave

for Polk County teachers. Section 20.1 of the Agreement grants

four days of sick leave as of a teacher's first day of

employment. Af ter the first day , teachers earn one additional

day of sick leave for each month of employment . The system

credits the day to the employee at the end of each month. The

maximum number of sick leave days an employee may earn during any

given school year is twelve. U nused sick leave accrues from

year - to - year . T he Agreement does not limit t he number of days

that teachers may accrue.

12 . Section 20.2 of the Agreement grants teachers six

personal leave days during the school year. They are drawn from

the pool of total available sick days. The distinction bet ween

personal days and sick leave days is that sick leave is intended

to be taken because of an employee' s or employee's family's

illness or other health problem. Personal days may be taken for

any reason. Personal leave days are a subset of sick leave d ays.

A teacher may take personal leave days only if sick leave days

are available to the employee. If an employee is absent and has

no available sick leave time, then the employee is absent without

authorization .

13 . Article XXI of the Agreement govern s unpaid leave. It

includes a variety of categories including medical leave,

educational leave, and parental leave. There is no indication

that Mr. Marrero inquired about unpaid leave or that the school

administration suggested that he consider it.

14 . Mr. Marrero's struggles with attendance reach back to

2016. By letter dated February 12, 2016, his Principal,

Edgar Santiago, document ed a verbal warning for excessive

absenteeism. The Principal noted that he held a conference with

Mr. Marrero on the 12t h and had discussed the fact that

attendance records showe d Mr. Marrero had missed 18 days of work

during the school year. Eight days were unpaid because he had

exhausted his available leave time. The letter caution ed that it

was the first step of the Pr ogressive Discipline process set

forth in Section 4.4 - 1 of the Agreement. The letter concluded,

"It is important to note that further disciplinary action, up to

and including termination, will follow if unacceptable behaviors

continue."

15 . On March 15, 2016, Principal Santiago delivered another

letter to Mr. Marrero. The letter was a written reprimand under

Step 2 of the Progressive Discipline process. The letter noted

that by then Mr. Marrero had missed 23 days of work that school

year, 13 of which ex ceeded his available leave time. The letter

referenced the Agreement's Progressive Discipline section and

noted that further disciplinary action could result in

termination of Mr. Marrero ' s employment.

16 . On March 29, 2017, Principal Santiago wrote the

Superintendent of the Polk County schools and advised her that

Mr. Marrero continue d to miss work after depleting his available

sick and personal leave days. Principal Santiago noted that

Mr. Marrero knowingly missed work without available sick or

persona l leave. His letter stated, "I am of the opinion that

Mr. Marrero's recent absences without pay is [sic] a continuing

trend and just cause for further disciplinary action." Principal

Santiago recommended imposition of Step 3 of the progressive

discipline process, suspension for up to five days without pay.

He provided Mr. Marrero a copy of the letter.

17 . On April 19, 2017, the school administration provided

Mr. Marrero a letter from Associate Superintendent

Teddra Porteo u s notifying him that he was sus pended without pay

for three days for his absenteeism. The letter stated

specifically that the suspension constituted Step 3 of

progressive discipline under the Agreement. The letter also

stated that further disciplinary action could result in

terminatio n.

18 . Because of Mr. Marrero's absenteeism, Principal

Santiago placed him on a Professional Development Plan, which

included goals and strategies for improving his attendance.

After the suspension and imposition of the Professional

Development Plan, Mr . Marrero completed the 2017 - 2018 school year

without absences exceeding his accrued leave time. 1/

19 . Mr. Marrero' s attendance problems returned in the 2018 -

2019 school year. Beginning in August of 2018, Mr. Marrero

missed work for one - half or more days on 23 different dates.

These dates do not include his absences on May 30 and 31, 2019,

which were the result of his suspension after the Superintendent

recommended termination of his employment. As of January 24,

2019, Mr. Marrero had exhausted his avai lable sick leave and

personal time for one - half day or more on ten different workdays .

Yet he was absent five days in April.

20 . Principal Santiago wrote the Superintendent on

April 30, 2019, recommending termination of Mr. Marrero. This

was Step 4 of the progressive discipline process. The

Superintendent accepted the recommendation.

2 1 . On May 29, 2019, Principal Santiago delivered a May 23,

2019, letter from Associate Superintendent Porteous to

Mr. Marrero. The letter stated, "Based on these facts [absences

history], and in accordance with Step IV of Progressive

Discipline in Article 4.4 - 1 - Progressive Discipline of the Teacher

Collective Bargaining Agreement , the Superintendent has

determined that 'j ust cause ' exists to recommend termination of

your employment to the School Board of Polk County. " The letter

advised Mr. Marrero of his right to request a hearing. He

exercised that right.

22. During the 2016 - 2018 period, Mr. Marrero had advised

Principal Santiago of the serious personal problems caus ing his

repeated absences. Principal Santiago authorized Mr. Marrero to

occasionally arrive late for work or leave early. He did not

authorize Mr. Marrero to take full days or half - days off without

charging them to available leave. Nor did Principal San tiago

have authority to do that.

CONCLUSIONS OF LAW

2 3. The Division has jurisdiction over the parties and

subject matter of this proceeding pursuant to the contract

between the Board and the Division and sections 1012.33, 120.569,

and 120.57, Florida St atutes (2019). 2/

24. The Board must prove its charges by a preponderance of

the evidence. § 120.57(1)(j), Fla. Stat.; McNeill v. Pinellas

Cty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v.

Sch. Bd. of Dade Cty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

Preponderance of evidence means evidence showing as a whole that

the fact sought to be proved is more probable than not. Dufour

v. State , 69 So. 3d 235, 252 (Fla. 2011).

25. Sections 1001.42(5) and 1012.22(1)(f) , Florida

Statutes, grant the Board the authority to impose discipline up

to termination on Mr. Marrero. Section 1012.33(1)(a ) provides

that school district instructional personnel may be dismissed at

any t ime during the school year for "just cause." Section 4.4 of

the Agreement als o permits termination for "just cause."

26. The statute defines "just cause" as follows:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompete ncy . . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty to, regardless

of adjudication of guilt, any crime involving

moral turpitude.

2 7 . Florida Administrative Code Rule 6A - 5.056, o f the St ate

Board of Education defines "just cause" as the basis for

dismissal actions against instructional personnel. The rule

defines incompetency as the failure or inability to discharge

required duties because of inefficiency. Fla. Admin. Code R. 6A -

5.056(3). It defines inefficiency as, among other things,

" Excessive absences or tardiness." Fla. Admin. Code R. 6A -

5.056(3)(a)5.

28. The paid leave provisions of the Agreement plainly

state what absences are permitted. The linked corollary is that

ab sences exceeding those permitted are excessive.

2 9 . The preponderance of the evidence proved the excessive

absences of Mr. Marrero, as set out in the Findings of Fact.

30. The preponderance of the evidence also proved the Board

complied with the progress ive discipline requirements of the

Agreement. The progressive discipline provided Mr. Marrero clear

and repeated notice of his offenses and the consequences that

would follow if the y continued.

31. Mr. Marrero's absences stem from his attending to grave

problems at home affecting his children. They present

sympathetic circumstances. However, they do not change the fact

that Mr. Marrero was repeatedly absent more days than the

Agreement permitted or the importance of a teacher's presence in

the classroom .

32. The Board proved "just cause" for Mr. Marrero's

discharge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Polk County School Board,

enter a final order finding just cause to termin ate the

employment of Respondent, Hector Marrero , and dismissing him from

his position with the Polk County School Board.

DONE AND ENTERED this 22nd day of January , 2020 , in

Tallahassee, Leon County, Florida.

JOHN D. C . NEWTON, II

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 Adm inistrative Hearings

this 22nd day of January , 2020 .

ENDNOTE

1/ The April 30, 2019, letter recommending Mr. Marrero's

suspension refers to an April 1, 2018 , absence. (P. Ex. 4 ) The

date is a typographical error.

2 / All statutory citations are to the 2019 codification of the

Florida Statutes.

COPIES FURNISHED:

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North

Suite 110

Clearwater, Florida 33761 - 1538

(eServed)

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

2 45 South Central Avenue

Bartow, Florida 33830 - 4620

(eServed)

Jacqueline Byrd, Superintendent

Polk County School Board

1915 South Floral Avenue

Bartow, Florida 33830 - 7124

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIG HT 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.