19-006580TTS Miami-Dade County School Board vs. Carlos M. Sanjurjo Status: Closed Recommended Order on Monday, June 1, 2020.

Summary: Petitioner proved that Respondent engaged in two counts of misconduct in office. Consistent with the progressive discipline policy, recommend suspension for one offense and verbal reprimand for other offense.

P RELIMINARY S TATEMENT

On November 21, 2019, Petitioner, M iami - Dade County School Board, took

action to suspend Respondent, Carlos M. Sanjurjo, from his employment as a

teacher for ten days without pay . Respondent timely requested an administrative

hearing and the matter was referred to DOAH on December 10, 2019, for

assignment of an ALJ to conduct the final hearing. Pursuant to the Order Requiring

Filing of Notice of Specific Charges, Petitioner filed its Notice of Specific Charges on J anuary 17, 2020, setting forth the factual and legal grounds for the proposed

discipline .

The final hearing was scheduled for, and held on, March 17, 2020. Petitioner

presented the testimony of student S.D., Sandra Smit h - Moise, Yvette Mestre, and

Ana Mercedes Acevedo Molina . A Spanish language translator was duly sworn and

translat ed Acevedo Molina 's testimony for the record. Petitioner's Exhibits 1

through 6 and 9 were admitted into evidence without objection, and Petitioner's

Exhibit 7 was admitted over objection. Respondent testified on his own behalf and did not tender any exhib its for admission into evidence.

The one - volume Transcript was filed at DOAH on April 27, 2020 . P ursuant to

the Deadline for Filing Proposed Orders, the parties were given until May 7, 2020,

to file thei r proposed recommended orders. Both Proposed Recom mended Orders

were timely filed and duly considered in preparing this Recommended Order.

F INDINGS OF F ACT

Based on the credible and persuasive competent substantial evidence in the

record , the following Findings of Fact are made:

I. T he Parties

1. Petiti oner, Miami - Dade County School Board, is charged with the duty to

operate, control, and supervise free public schools in Miami - Dade County pursuant

to section 1001.32, Florida Statutes (2018) , and article IX, section 4(b) of the Florida

Constitution .

2. Re spondent has been employed by Petitioner as a teacher since 2000. He has

been emp loyed as an art teacher at E.W. F. Stirrup Elementary School ("Stirrup")

for the last 18 years, including when he is alleged to have engaged in the conduct

that has given rise to this proceeding. Respondent is certified in art, graphic design,

and vocational education.

II. Notice of Specific Charges

3. The Notice of Specific Charges ("NSC"), which constitutes the administrative

complaint in this proceeding, alleges two instanc es of conduct on Respondent 's part

as the grounds for the proposed disciplinary action.

4 . Specifically, the NSC alleges that on or about September 27, 2018,

Respondent told a female 5th grade student words to the effect of "get out here; I do

not want y ou here , " and forcibly pushed her away with his hand.

5 . The NSC also alleges that Respondent used profanity , spoken in Spanish —

specifically, the words "mierda" 3 and "pinga" 4 while covering a class of

kindergarten student s. The complaint alleges that two adults witnessed

Respondent's use of these words. 5 This incident is alleged to have occurred on or

about December 5, 2018.

6 . Based on this alleged conduct, the NSC charges R espondent with misconduct

in office , pursuant to Florida Administrative Code Rule 6A - 5.056(2) , f or having

violated specified provisions of rule 6A - 10.081, Principles of Professional Conduct

for the Education Profession; School Board Polic y 3210, Standards of Ethical

Conduct ; and School Board Policy 3210.01, Code of Ethics.

III. Evidence Adduced at the Final Hearing

The S eptember 27, 2018 Incident

3 Translated into English, "mierda" means "shit."

4 Translated into English, "pinga," as used in the context pertinent to this proce eding, means "fuck . "

5 As more fully discussed b elow, the NSC does not allege that Respondent's use of these word s was

directed at any students, or that any students saw or heard Respondent use these words.

7 . On September 27, 2018 , S.D., a minor, was a student in Respondent's 5th

grade art class.

8 . S.D. testifi ed, credibly, that on that day, Respondent told her to "get out of his

way," then pushed her away by p lacing his hands on her shoulders. She testified

that Respondent's words and actions made her feel "embarrassed, or, like, weird."

9 . S.D. acknowledged that she had gone up to Respondent and tried to talk to

him while he was talking to the president of the Parent Teacher Association

("PTA") . She tried to get hand sanitizer and Respondent said to her "not now, go

away " because he was talking to the PTA pr esident at that time .

10 . Respondent characterized S.D. as a child who " has a reputation for basically

not obeying anything."

1 1 . He testified that when S.D. approached his desk, he was in a discussion with

the PTA president, and he told S.D. to "get o ut of here" and "sit down . " He did not

recall touching her . He stated t hat from where he was standing, he doubt ed that he

could have reached her to push her away , and that had he pushed her, she likely

would have fallen.

12. No other witnesses testified at the final hearing regarding this incident.

The D ecember 5, 2018 Incident

1 3 . On Wednesday, December 5, 2018, Respondent was assigned to cover

a nother teacher's kindergarten class starting at 9:00 a.m., so that the teacher who

regularly taught that clas s , Ms. Rivero, could attend an exceptional student

education ("ESE") meeting regarding one of her students.

1 4 . For the 2018 - 2019 school year, Respondent was assigned a full day of

planning each Wednesday. In addition, Respondent was assigned one hour of

planning every other day of the school week , per the Miami - Dade School District

("District") policy of providing teachers a minimum of one hour of planning per day . 6

6 Respondent was assigned a full day of plannin g on Wednesdays in the 2018 - 2019 school year. This

was not a function of his having an extraordinar y workload ; rather, it was because on Wednesdays,

the language arts classes were scheduled back - to - back and students were dismissed early, so that it

was inf easible to schedule art classes on Wednesdays. As a result of this scheduling, Respondent

enjoyed nearly four more hours of planning per week than the minimum planning time to which he

was entitled under the District's planning policy.

According to Smith - Moise, if a teacher's schedule provide s more than an hour of

planning per day, that teacher may be requested , from time to time, to use that

additional planning time for i nvolv ement in other school activities, including

covering other teachers' classes as necessary.

1 5 . The administration at Stirrup generally attempts to schedule substitute

teachers to cover classes when a teacher is called away from his or her class ;

however, on December 5, 2018, another teacher's class already was being covered by

a substitute teacher. Because Respondent had planning that entire day, he d id not

have classes , so was available to cover Rivero's class.

1 6 . The length of ESE meetings varies, depending on the type of ESE service

being delivered and whether the students' parents agree with the school district

regarding the ESE services prop osed to be provided . This particular meeting was an

initial ESE team staffing meeting ; these types of meetings often are relatively long

compared to other types of ESE meetings.

1 7 . Respondent covered Rivero's class on December 5, 2018, f rom approximat ely

8:35 a.m. until shortly after 1:00 p.m. , when a substitute teacher was called to cover

the class for the remainder of the ESE meeting.

1 8 . During the time he was covering Rivero's class , Respondent called the

Stirrup administration office multiple ti mes , and also called and sent text messages

to a fellow teacher , Yvette Mestre, asking how long the ESE meeting would take

and when it would be over.

19 . In response to Respondent's calls, Smith - Moise twice left the ESE meeting to

speak to Respondent in Rivero's classroom . Both times, w hen she entered the

classroom, she observed Respondent disengaged from the students and talking very

loudly on his phone .

2 0 . Respondent made clear to Smith - Moise that he w as very frustrated at having

his planning time ta ken to cover Rivero's class when he had other responsibilities to

attend to. 7

7 ied that he had a great deal of work to do on a large mural project for his own Respondent testif

classes that needed to be completed under a tight deadline .

2 1 . Shortly after the beginning of the school day on December 5, 2018, Smith -

Moise had taken a student from Rivero's class to Mestre's class room because the

student was misbeha ving in Rivero's classroom . A short time thereafter,

Respondent began sending text messages to Mestre, asking when the ESE meeting

was going to be over . Mestre, who was occupied with teaching her own class ,

responded that she did not know, and suggested th at Respondent contact the

administration office. Around 10:30 or 11:00 a.m., Respondent began calling Mestre,

again asking about the length of the ESE meeting. Mestre testified that "he seemed

upset because he had stuff that he wanted to plan." Mestre agai n responded that

she did not know and suggested that Respondent contact the administration office.

2 2 . At some point , Mestre went to Rivero's classroom to retrieve a lunchbox for

the student from Rivero's class who m she was supervising . W hen she entered the

classroom , she observed Respondent on his phone . Respondent told Mestre that he

was on the phone with his United Teachers of Dade ("UTD") representative and

that he was upset at having to cover Rivero's class because it was his planning day.

2 3 . Mes tre w ent to the administrative office and reported to Smith - Moise that

Respondent was upset and needed assistance in Rivero's classroom. Smith - Moise

directed Mestre to take Acevedo Molina, an office assistant , to the classroom so that

she ( Acevedo Molina) could assist Respondent.

2 4 . According to Mestre, when they entered the classroom, Respondent initially

thought Acevedo Molina was going to take over supervision of the class; however,

when Mestre informed him that Acevedo Molina was there to assist him but would

not be taking over supervision of the class, Respondent became very irate , raised his

voice, and used the words "mierda" and "pinga" in speaking to them . 8

2 5. Acevedo Molin a confirmed t hat Respondent used the se words when he spoke

to her and Mestre .

2 6 . Mestre and Acevedo Molina were , respectively, "shocked" and "surprised" at

Respondent's use of these words.

8 Mestre testified that Respondent said, translated into English, "[t]he school doesn't understand the

shit that I do," and "they don't give a fuck what I do in this school."

2 7 . Respondent testified that he does not recall having said those words when he

spoke to Mestre and Acevedo Molina that day.

2 8 . T here is conflicting evidence whether Respondent used th ose words in side

the classroom , such that they were said within earshot of the students , or outside of

the classroom, where the students would not be able to hear or see him use the

words . Mestre and A cevedo Molina both testified that they had entered Rivero's

classroom and were in side the classroom with Respondent when he used the words.

Respondent claims that he had to have stepped outside of the classroom into the

corridor to speak to Mestre and Acev edo Molina , because the door was locked and

they would have been unable to open it and enter the classro om on their own.

29 . In any event, it is unnecessary to determine whether Respondent used the se

words in the classroom within the students' earshot , because the NSC only charge s

Respondent with having said "mierda" and "pinga" while "covering a class of

kindergarten students for another teacher , " and that Respondent's use of these

words was " overheard by two adult witnesses . " The NSC does not allege th at

Respondent direct ed the words toward any students or that any students saw or

heard him use the se words . 9

3 0 . No direct or persuasive circumstantial evidence was presented showing that

any students saw or overheard Respondent use those words . Althoug h Mestre and

Acevedo Molina testified that Respondent was inside the classroom when he said

the words, both testified that the words were not directed toward the students, and

neither testified that any students heard or saw Respondent say those words. Thu s,

e ven if the evidence conclusively established that Respondent was in side the

classroom when he said those words — which it does not — that does not prove that

any students saw or heard Respondent use those words. To that point, Smith - Moise

9 Trevisani v. Dep't of Health , 908 So. 2d 1008, 1009 (Fla. 1st DCA 2005)(a respondent cannot be

discipl ined for offenses not factually alleged in the administrative complaint); Cottri l l v. Dep't of Ins. ,

685 So. 2d 1371, 1372 (Fla 1st DCA 1996 ) ( p redicating disciplinary action on conduct never alleged in

an administrative complaint or some comparable pleading violates the Administrative Procedure

Act) . See Hunter v. Dep't of Prof'l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA 1984)(administrative

complaint seeking to impose discipline must state, with specificity, the acts giving rise to the

complaint).

testified that th e school had not received any complaints about Respondent's use of

those words from any of the students or their parents.

3 1 . The UTD Contract establishes a policy of imposing progressive discipline

("Progressive Discipline Policy") when " the Board deems it appropriate, and . . . the

degree of discipline shall be reasonably related to the seriousness of the offense."

Neither the Progressive Discipline Policy nor Petitioner' s adopted policies articulate

a disciplinary "scale" or penalty categories applicabl e to specific types of conduct.

3 2 . There is no competent substantial evidence in the record showing that

Respondent previously has been subject ed to disciplinary action by Petitioner.

3 3 . Petitioner did not present any competent substantial evidence es tablish ing

the factual basis for its proposal to suspend Respondent for ten days for the offenses

charged in the NSC .

IV. Findings of Ultimate Fact

3 4 . As noted above, Petitioner has charged Respondent with misconduct in office

under rule 6A - 5.056(2) for having violated specified provisions of rule 6A - 10.081,

Principles of Professional Conduct for the Education Profession; School Board Policy

3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of

Ethics.

3 5 . Whether an offense cons titutes a violation of applicable statutes, rules, and

policies is a question of ultimate fact to be determined by the trier of fact in the

context of each violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st D C A

1995)(whether particular conduct vi olates a statute, rule, or policy is a factual

question); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether

the conduct, as found, constitutes a violat ion of statutes, rules, or policies is a

question of ultimate fact); Holmes v. Turlin gton , 480 So. 2d 150, 153 (Fla. 1st DCA

1985)(whether there was a deviation from a standard of conduct is not a conclusion

of law, but is instead an ultimate fact).

Charged Conduct and Rule Violations

A. The September 27, 2018 Incident

3 6 . Based on the f oregoing, it is determined , as a matter of ultimate fact, that

Respondent pushed S.D. on September 27, 2018.

3 7 . There was no justification for Respondent to place his hands on and push

S.D. , even if she interrupted him while he was speaking with another person .

38 . Respondent's conduct in pushing S.D. constituted misconduct in office, as

defined in rule 6A - 5.056(2) .

39 . Specifically, Respondent's conduct did not comport with rule 6A - 10.081(1)(a) ,

which provides that his primary professional concern must be for the student, and

requires him to exercise best professional judgment. In pushing S.D., he did not

treat her as his primary professional concern , and he did not exercise best

professional judgment.

40 . Additionally, Respondent's conduct did n ot comply with rule

6A - 10.081(2)(a) 1. or School Board Policies 3210 and 3210.01. Specifically, in

pushing S.D., Respondent did not make a reasonable effort to protect her from

conditions harmful to her mental and physical health and safety . Although S.D. was

not physically injured, she was embarrassed by Respondent's conduct in pushing

her .

4 1 . Respondent's conduct also did not comply with rule 6A - 10.081(2)(a) 5. or

School Board Policies 3210 and 3210.01. Respondent's conduct in pushing S.D. was

intentio nal and it expose d her to embarrassment.

4 2 . Because Respondent's conduct in pushing S.D. violated rule s 6A -

10.081 (1)(a) 1. and (2)(a) 1. and 5., and School Board Policies 3210 and 3210.01, it is

found , as a matter of ultimate fact, that Respondent committe d misconduct in office ,

pursuant to rule 6A - 5.056(2).

4 3 . Pursuant to the UTD P rogressive D iscipline P olicy, it is determined that

Respondent's conduct in pushing S.D. was sufficiently serious to warrant suspending him without pay for five days. There was no justification for him having

pushed her. Although S.D. was not physically injured as a result of Respondent's conduct , the potential existed for her to have been injured had she fallen , and, in

any event, Respondent's intentional action subjected her t o embarrassment.

B. The December 5, 2018 Incident

4 4 . Based on the foregoing findings , it is determined , as a matter of ultimate

fact, that Respondent use d the words "mierda" and "pinga," which are profane

words, when speaking to Mestre and Acevedo Moli na on December 5, 2018.

4 5 . However, for the reasons discussed above, it is determined , as a matter of

ultimate fact, that Respondent did not direct those words t oward the students or

that any students heard or saw him use those words. 10

4 6 . Respondent 's use of profanity in speaking to Mestre and Acevedo Molina did

not comport with rule 6A - 10.081(1)(c ). I n using profanity toward his colleagues ,

Respondent did not strive to achieve and sustain the highest degree of ethical

conduct. Mestre and Acevedo Mol ina both testified to the effect that they viewed his

conduct as inappropriate in that professional setting.

4 7 . Respondent's use of those words when speaking to Mestre and Acevedo

Molina did not comply with the requirement in School Board Policy 3210 to refrain

from the use of profane or abusive language in the workplace.

48 . Respondent's use of those words when speaking with Mestre and Acevedo

Molina also did not comply with the standard set forth in School Board Policy

3210.01 , which requires the emp loyee to show respect for other people.

49 . In sum, Respondent's conduct in saying "mierda" and "pinga" while speaking

to Mestre and Acevedo Molina violated rules 6A - 10.081 (1)(c) and School Bo ard

policies 3210 and 3210.01. Accordingly, Respondent's condu ct constituted

misconduct in office under rule 6A - 5.056(2).

5 0 . As discussed above, there is no competent substantial evidence establishing

that Respondent ha s ever been subject ed to disciplin e by Petitioner prior to this

proceeding. Although Respondent' s conduct in using profanity when speaking to two

adult colleagues violates certain policies, in light of the UTD P rogressive D iscipline

P olicy , such violation is not sufficiently serious to warrant suspension without pay .

Therefore , it is determined that, consistent with the concept of progressive

10 Further, as discussed above, the administrative complaint does not charge Respondent with using

thos e words toward students or charge that any students saw or heard him use those words.

discipline, Petitioner should issue a verbal reprimand to Respon dent for his conduct

in using profanity when speaking to his colleagues.

5 1 . Because Respondent was not charged with, and the evidence did not prov e,

that he directed profanity toward any students or that any students saw or heard

him use profanity, Petitioner may not impose discipline on Respondent on that

basis.

Just Cause

5 2 . Based on the foregoing, it is determined , as a matter of ultimate fact , that

just cause exists to suspend Respondent .

Recommended Penalty

5 3 . Based on the foregoing , it is determined that Respondent should be

suspended for five days without pay for having pushed S.D.

5 4 . Based on the foregoing, it is determined that Respon dent should be issued a

verbal reprimand for using profanity when speakin g to Mestre and Acevedo Molina

a nd Respondent should receive five days of back pay for the balance of the ten - day

period for which Petitioner proposed to suspend him.

C ONCLUSIONS O F L AW

55. DOAH has jurisdiction over the parties to, and subject matter of, this

proceeding, pursuant to sections 120.569 and 120.57(1).

5 6 . This is a disciplinary proceeding in which Petitioner seeks to suspend

Respondent from his employment, without p ay, for ten days.

5 7 . This is a de novo proceeding designed to formulate agency action, not review

agency action taken earlier and preliminarily. Dep't of Transp. v. J.W.C. Co. , 396

So. 2d 778, 775 (Fla. 1st DCA 1981); Capelleti Bros., Inc. v. Dep't of Tr ansp. , 362 So.

2d 346, 348 (Fla. 1st DCA 1978); McDonald v. Dep't of Banking and Fin. , 346 So. 2d

569, 584 (Fla. 1st DCA 1977). Accordingly, the undersigned is charged in this

proceeding with determining anew, based on the competent substantial evidence in

the record, whether just cause exists to suspend Respondent from his employment.

58 . Respondent is classified as " instructional personnel" as that term is defined

in section 1012.01(2).

59 . Section 1012.33(6)(a) states, in pertinent part, that "any me mber of the

instructional staff may be suspended or dismissed at any time during the term of

the contract for just cause as provided in paragraph (1)(a)." "Just cause" is "cause

that is legally suff icient." Fla. Admin. Code R. 6A - 5.056. Pursuant to section

1012.33(1)(a), just cause includes misconduct in office .

6 0 . To suspend Respondent from h is employment as a teacher, Petitioner must

prove that he committed the alleged conduct, that the conduct violates the rules and

policies cited in the administrative complaint, and that the violation of these rules

and policies constitutes just cause to suspend him . Dileo v. Sch. Bd. of Dade Cty. ,

569 So. 2d 883 (Fla. 3d DCA 1990). See Balino v. Dep't of HRS , 348 So. 2d 349, 350

(Fla. 1st DCA 1977)(unless provided oth erwise by statute, the burden of proof is on

the party asserting the affirmative of the issue).

6 1 . The standard of proof applicable to this proceeding is a preponderance, or

greater weight, of the evidence. McNei l l v. Pinellas Cty. Sch. Bd. , 678 So. 2d 4 76,

477 (Fla. 2d DCA 1996); Dileo , 569 So. 2d at 884 .

6 2 . P etitioner has charged Respon dent with committing misconduct in office.

Rule 6A - 5.056(2) defines " misconduct in office ," in pertinent part, as:

* * *

(b) A violation of the Principles o f Professional Conduct

for the Education Profession in Florida as adopted in Rule

6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student’s learning

environment; or

(e) Behavior that reduces the te acher’s ability or his or

her colleagues’ ability to effectively perform duties.

6 3 . Rule 6A - 10.081 , the Principles of Professional Conduct for the Education

Profession in Florida , prescribes standards of conduct applicable to instructional

personnel. Th is rule states, in pertinent part:

(1) Florida educators shall be guided by the following

ethical principles:

(a) The educator values the worth and dignity of every

person, the pursuit of truth, devotion to excellence,

acquisition of knowledge, and the nu r ture of democratic

citizenship. Essential to the achievement of these

standards are the freedom to learn and to teach and the

guarantee of equal opportunity for all.

(b) The educator’s primary professional concern will

always be for the student and for t he development of the

student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

(c) Aware of the importance of maintaining the respect

and confidence of one’s co lleagues, of students, of parents,

and of other members of the community, the educator strives to achieve and sustain the highest degree of

ethical conduct.

(2) Florida educators shall comply with the following

disciplinary principles. Violation of any of these principles

shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties

as provided by law.

(a) Obligation to the student requires that the individual:

1. Shall make reasonable effort to protect the student

from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

* * *

5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

6. Shall not intention ally violate or deny a student’s legal

rights.

6 4 . School Board Policy 3210, Standards of Ethical Conduct, establishes

Petitioner's standards of employee conduct. This policy states, in pertinent part:

A ll employees are representatives of the District an d shall

conduct themselves, both in their employment and in the

community, in a manner that will reflect credit upon

themselves and the school system.

A. An instructional staff member shall:

* * *

3.[M] ake a reasonable effort to protect the stud ent from

conditions harmful to learning and/or to the student's

mental and/or physical health and/or safety;

* * *

7. [ N ] ot intentionally expose a student to unnecessary

embarrassment or disparagement;

8. [N] ot intentionally violate or deny a s tudent's legal

rights;

* * *

21. [N] ot use abusive and/or profane language or display

unseemly conduct in the workplace[.]

6 5 . School Board Policy 3210.01, Code of Ethics, states, in relevant part:

Fundamental Principles

The fundamental pri nciples upon which the Code of

Ethics is predicated are as follows:

* * *

E. Integrity – Standing up for their beliefs about what is

right and what is wrong and resisting social pressure to

do wrong.

F. Kindness – Being sympathetic, helpful, com passionate,

benevolent, agreeable, and gentle toward people and other

living things.

* * *

H. Respect – Showing regard for the worth and dignity of

someone or something, being courteous and polite, and

judging all people on their merits. It takes three (3) major

forms: respect for oneself, respect for other people, and

respect for all forms of life and the environment.

* * *

Conduct Toward Students

Each employee:

A. [S]hall make reasonable effort to protect the student

from conditions harmful to learning and/or the student's

mental and/or physical health and/or safety;

* * *

E. [S]hall not intentionally expose a student to

unnecessary embarrassment or disparagement;

F. [ S ] hall not intentionally violate or deny a student's

l egal rights[.]

6 6 . Based on the foregoing, it is concluded that Respondent's conduct violated

rule s 6A - 10.081(1)(a)1. and (1)(c), and (2)(a)1. and 5. ; School Board Policy 3210 ; and

School Board Policy 3210.01, and , thus, c o nstituted misconduct in office under rule

6A - 5.056(2).

6 7 . Accordingly, it is concluded that just cause exists, pursuant to section

1012.33, to suspend Respondent from his employment.

6 8 . The Progressive Discipline Policy set forth Article XXI of the UTD Contract,

Employee Rights an d Due Process, section 1, Due Process, paragraph A.1. , states, in

pertinent part:

T he [Miami - Dade County School] Board and Union

recognize the principle of progressive discipline. The

parties agree that disciplinary action may be consistent

with the concep t of progressive discipline when the Board

deems it appropriate, and that the degree of discipline

shall be reasonably related to the seriousness of the

offense .

Progressive Discipline Policy (emphasis added).

69 . As discussed above, Petitioner did not present any evidence in this de novo

proceeding substantiating its departure from the concept of progressive discipline.

As noted above, n either the Progressive Discipline Policy nor Petitioner's adopted

policies articulate a disciplinary scale or penalty categories applicable to specific

types of conduct. While the Progressive Discipline Policy affords Petitioner the

discretion to adhere to it when Petitioner deems progressive discipline

"appropriate," it also requires that the degree of discipline be reas onably related to

the seriousness of the offense .

7 0 . The record evidence substantiates the seriousness of Respondent's conduct in

pushing S.D. , such that imposing a five - day suspension is reasonable discipline for

that offense .

71. However, t he recor d evidence does not support departing from the

Progressive Discipline Policy for Respondent's use of profanity while speaking with two of his adult colleagues . The evidence does not establish that such conduct is

sufficiently serious to warrant a suspensio n — much less a five - day suspension .

11

Given that Respondent has not previously been subject to discipline by Petitioner ,

suspending Respondent for this conduct is not reasonably related to the seriousness

of the offense; rather, a verbal rep rimand is a reaso nable penalty under the

circumstances.

11 An a gency 's exercise of its discretion must be established by evidence appropriate to the nature of

the issues involved, and the agency must expose and elucidate its reasons for its discretionary action.

FPL Co. v. Siting Board , 693 So. 2d 1025, 1027 - 28 (Fla. 1st DCA 1997) . See § 120.57(1)(l) , Fla. Stat.

(agency imposition of penalty must be supported by the record evidence).

7 2 . For the reasons addressed above , it is concluded that Respondent's conduct

in pushing S.D. was sufficiently serious to warrant departing from the Progressive

Discipline Policy and suspending him for five days without pay .

7 3 . For the reasons addressed above , it is concluded that Respondent's conduct

in using profanity in speaking to two adult colleagues is not sufficiently serious to

warrant departing from the Progressive Discipline Policy. Because Respondent has

not previously been subject to discipline, it is concluded that he should be given a

verbal reprimand for this conduct .

74. Because the administrative complaint did not charge Respondent with

having used profanity toward any students or that any stud ents saw or heard him

use profanity, and , in any event, the record evidence did not establish that

Respondent directed profanity toward any students or that any students saw or

heard him use profanity, Respondent is not subject to discipline for such condu ct.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that , consistent with the foregoing, Petitioner enter a final order

suspending Respondent from his employment as a teacher for five days without pay, issui ng a verbal reprimand to Respondent , and awarding Respondent back pay for

five days .

D

ONE A ND E NTERED this 1st day of June , 2020 , in Tallahassee, Leon County,

Florida.

C ATHY M. S ELLERS

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 1st day of June , 2020 .

C OPIES F URNISHED :

Christop her J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761 - 1526

(eSer ved)

Cristina Rivera, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Carlos M. Sanjurjo

Apartment 214

14907 Southwest 80th Street

Miami, Florida 33193

Alberto M. Carvalho, Superintendent

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Rich ard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.