20-003001TTS Broward County School Board vs. Eric Delucia Status: Closed Recommended Order on Monday, March 29, 2021.

Summary: District school board failed to prove that teacher engaged in verbal altercations with students, calling them names and attempting to provoke them to anger; recommended that employee not be dismissed for just cause.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 3 001 TTS

E RIC D ELUCIA ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by video teleconference on December 1 , 20 20 , at sites in Fort

Lauderdale and Tallahassee, Florida .

A PPEARANCES

For Petitioner: Andrew Carrabis, Esquire

Broward County School Board

600 Sout heast Third Avenue , 11th Floor

Fort Lauderdale , Florida 3 3301

For Respondent: Branden M. Vicari , Esquire

Her d man & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater , Florida 33 761

S TATEMENT OF T HE I SSUE

The issue is whether the district school board has just cause to dismiss an

instructional employee for just cause , where it has alleged that the teacher

engaged in verbal altercations with students, calling them names and

attem pting to provoke them to anger .

P RELIMINARY S TATEMENT

On June 9 , 2020 , Petitioner Broward County School Board (the ÑSchool

BoardÒ or ÑDistrictÒ ) approved the issuance of an Amended Administrative

Complaint against Respondent Eric Delucia ( Ñ Delucia Ò ) , charging the

instructional employee with disciplinable offense s based upon allegations

that, on two separate occasions in the classroom during the 2019 - 2020 school

year, he engaged in verbal altercations with students, calling them names

and attempting t o provoke them to anger . The District alleges that, taken

together, these alleged incidents constitute just cause for dismissal.

Delucia timely requested a formal administrative hearing . B y letter dated

July 1 , 20 20, the School Board referred the matter to DOAH for further

proceedings . Upon assignment, the undersigned set the final hearing for

August 6, 2020, a date which was later continued to December 1, 2020 .

At the final hearing, the District called as witnesses eight students,

including the alleged victims K.L. and Z.L., plus four employees: Rodney

Robertson, Christina Reyes, Robert Goodwin, and Alan Strauss .

Pet itioner Ô s Exhibits 1 through 42, excluding number 24, were received in

evidence without objection . Delucia testified on his own behalf and offered the

testimony of Joshua Jamieson . Respondent Ô s Exhibits 1 through 9 , excluding

number 7, were admitted without objection .

The final hearing transcript was filed on December 21 , 20 20 . Each party

timely filed a Proposed Recommended Order , and these submissions were

considered in the preparation of this Recommended Orde r.

Unless otherwise indicated, citatio ns to the official statute law of the state

of Florida refer to Florida Statutes 20 20 , except that all references to statutes

or rules defining disciplinable offenses or prescribing penalties for

committing such offenses are to the versions that were in ef fect at the time of

the alleged wrongful acts .

F INDINGS OF F ACT

1 . The School Board is the constitutional entity authorized to operate,

control, and supervise the Broward County Public School System . At all

times relevant, it was DeluciaÔs employer.

2 . A s an instructional employee of the School Board , for which he has

worked for more than 15 years, Delucia holds a professional services contract

that automatically renews each year and may be terminated only for just

cause . During the relevant school year, 2019 - 2020, Delucia was assigned to

Piper High School, where he taught Digital Information Technology .

3 . In this proceeding, the School Board seeks to terminate DeluciaÔs

employment for just cause based on two similar, but unrelated classroom

incidents, which occurred, respectively, on September 26, 2019, and

November 14, 2019 . Both situations are simple and straightforward,

involving discrete teacher - student confrontations of short duration .

4 . The first incident involved a ninth - grade student named K.L . Here is

what the School Board alleges took place on September 26, 2019:

K.L. was out of his seat during class . Delucia

approached the student and stated to K.L., Ñcome

here dummy. Ò Confused, K.L. asked Delucia what he

said and Delucia replied, Ñcome here dummyÒ and

ÑidiotÒ to K.L . Upon the repetition of the statements

to K.L., the verbal confrontation escalated . K.L. told

Delucia to Ñwatch his mouthÒ while Delucia kept

repeating the statement Ñyou are a dummyÒ to K.L.,

while laughing.

5 . On the da y of the incident, K.L. gave the school police a written

statement describing the ÑaltercationÒ (as the School Board calls it) in his

own words:

I was up out of my seat, and Mr. Delucia said Ñcome

here dummy. Ò I as k [ed] him to repeat what he said

and he said the same Ñcome here dummy. Ò I told him

to watch your mouth and [he] kept repeating Ñyou

are a dummyÒ many times and I lost my temper and

I said next time [you] say that I am going to knock

the glasses off your face.

Comparison of K.L.Ôs statement 1 to the School BoardÔs allegations shows that

the School Board not only accepted K.L.Ôs testimony as a credible account , but

also cleaned him up as a witness, omitting the undisputed fact that K.L.

threatened (in more violen t language than his statement admits ) to hit

Delucia in the face .

6 . Delucia wrote a contemporaneous description of the event , too, in a

Student Referral Form accusing K.L. of committing disciplin able condu ct .

This account, which Delucia submitted at 10: 32 a.m. on September 26, 2019,

immediately after the incident occurred, reads as follows:

Student [K.L.] was out of his seat all class . He was

told to sit down numerous times . He is constantly

touching other students . Then student was

argumentative . Then s tudent threatened [me,

saying] , ÑI will smack the fuck out of you,Ò when told

to sit down and be quiet È . Then he walked out of

class . Out of assigned area, insubordination,

disruptive to class and threatening teacher.

1 K.LÔs contemporaneous statement, like that, as well, of the student involved in the other

incident, Z.L., was made not only to inculpate Delucia, but also (it is reasonable to infer) to

exculpate himself, for K.L. knew by then that he was in trouble over t he confrontation . The

student in such a situation has both the motive and the opportunity to stick it to the

teacher Ð and he has little or nothing to lose by doing so . While these factors, of themselves,

do not necessarily discredit the studentsÔ statements , it should be recognized that K.L. and

Z.L. are not disinterested eyewitnesses; to the contrary, each was well - placed to make self -

serving statements to the school police, which the undersigned has kept in mind in making

credibility determinations.

DeluciaÔs statement leaves out th e undisputed fact that he (Delucia) used the

word ÑdummyÒ in this transaction with K.L. 2 The dispute regarding DeluciaÔs

use of this word is not over whether he uttered it Ð he did Ð but, rather, about

whether Delucia intended to disparage K.L.Ôs intellectual abilities when he

said it.

7 . Based on conflicting evidence, the following findings are made . The

incident involving K.L. began with K.L.Ôs misbehavior, i.e., being out of his

seat and goofing around with classma tes, instead of sitting at his desk and

working on his assignment . Delucia told K.L. to sit down, which was a

reasonable exercise of authority . Th e student refused to comply , however ,

choosing instead to give the teacher backtalk . Delucia directed K.L. to stop

acting like a dummy . K.L. responded as if Delucia had insulted his intellect Ð

but he had not . Based on the greater weight of the persuasive evidence, it is

found that, more likely than not, Delucia merely instructed to K.L. to quit

playing the fool , wh i ch was the meaning of the word ÑdummyÒ in this

context . 3 It is likely, moreover, that K.L. was awar e of this at the time but

2 Del uciaÔs contemporaneous statements in this referral and a later one relating to the other

alleged victim, student Z.L., were made not only when the respective incidents, which had

occurred minutes earlier , were fresh in the teacherÔs mind, but also prior to any dispute

regarding whether the teacher had committed a disciplinable offense . It is unlikely, therefore,

that Delucia wrote these statements in hopes of getting himself out of trouble . Moreover, t he

fact that these statements were written in the heat o f the moment, before time for reflection ,

cuts against the inference that Delucia was launching preemptive strikes Ð that is, going on

offense in anticipation of the students Ô report ing him . Indeed, it seems more likely that a

teacher in DeluciaÔs shoes, if he had a guilty mind about the incidents, would not have

written the referrals, the better to let the matters drop . These factors are indicia of

reliability, albeit not guarantees, which have been considered in evaluating the credibility of

DeluciaÔs conte mporaneous statements.

3 To underscore the difference, imagine a teacher telling the class that a student who has just

given the wrong answer to a problem is a dummy . In that context, the remark clearly would

impugn the studentÔs intelligence, in an insulting and embarrassing fashion to boot . Such an

act of cruelty probably would warrant discipline against the teacher absent extenuating

circumstances . The bottom line is that ÑdummyÒ is not so intrinsically disparaging that bad

intent may be inferred w ithout knowing how it was used; it s utterance , therefore, should not

result in the speakerÔs termination , irrespective of motive, intent, and context.

seized on DeluciaÔs maladroit expression 4 as grounds for further disruption

and defiance .

8 . K.L. escalated the situation by ad vancing on the teacherÔs desk, leaning

into DeluciaÔs personal space , and threatening to Ñ slap Ò or Ñ smack Ò the

teacherÔs ÑfuckingÒ glasses off his face . While there is some slight

disagree ment between witnesses as to K.L.Ôs exact words, the evidence is

overwhelming that K.L. threatened to strike Delucia in the face , and that he

menacingly used the angry F - word as an intensifier in doing so . The school

administration obviously believed DeluciaÔs testimony that K.L. had dropped

the F - bomb because K.L. was later suspen ded for two days over his use of

profanity during the incident . 5

9 . After K.L. threatened to hit Delucia, the teacher called security for

assistance . Before the security guard could arrive, however, K.L. left the

classroom, and the incident en ded . The School Board presented some

evidence that, as K.L. walked out, Delucia followed him and tauntingly called

him a ÑpussyÒ to provoke a fistfight . This strikes the undersigned as

essentially a separate charge, which was not pleaded in the Amended

Adm inistrative Complaint . In any event, t he persuasive evidence fails to

establish these unpleaded allegations by the greater weight , and thus it is not

found that Delucia tried to goad K.L. into fighting by calling him a Ñ pussy . Ò

4 Delucia has acknowledged that he should have used different language . This practically

goes without saying . Obviously, to avoid unfortunate misunderstandings, teachers should

refrain from using terms, like Ñdummy,Ò which have shades of meaning ranging from playful

to insulting depending upon a multitude of social cues.

5 It is curious, however, that the School Board nevertheless credited K.L.Ôs description of

DeluciaÔs conduct as more credible than the teacherÔs own testimony in this regard, given

that K.L.Ôs threat of violence against Delucia comes close to satisfying, if it does not meet, the

definitio n of a criminal assault . See § 784.011(1), Fla. Stat . The fact that K.L . (unlike

Delucia) arguably committed a misdemeanor offense during this confrontation casts doubt on

K.L.Ôs reliability as a witness . At hearing, Delucia vented his frustration that the

administration had failed to punish K.L. for perpetrating an intimidating threat of violence

against a teacher in the classroom . To this, the undersigned adds his bewilderment that the

School Board would hand a potentially dangerous student like K.L. the power to cost a

teacher his livelihood and possibly his career.

10 . The incident of November 14, 2019, involved a student named Z.L.,

who came to class that day without his student identification badge, which is

required for entry pursuant to school policy . The School Board alleges in its

Amended Administrative Complaint the following mat erial facts:

Delucia asked student Z.L. to put his student

identification on his person . Z.L. was working on a

class assignment and did not respond immediately .

Delucia then stated to Z.L., ÑNow you brat. Ò Delucia

further stated, ÑIf you would listen and s top being

stupid you would hear me. Ò Confused, Z.L. stated,

ÑIÔm stupid? Ò To which Delucia replied, ÑYes, look

how stupid you look, little brat.Ò

Delucia then directed Z.L. to leave his classroom .

Z.L. obliged and started to leave the classroom . As

Z.L. was leaving the classroom, the argument

escalated . Delucia confronted Z.L. and stated,

ÑYouÔre nothing but a pussy. Ò When this was said,

Z.L. confronted Delucia where further words were

exchanged and Delucia dared Z.L. to hit him . Z.L.

stated he would not hit Delucia . As such, while

laughing, Delucia called Z.L. a ÑpussyÒ for not

hitting him . Security had to be summoned to the

classroom . Delucia wanted Z.L. arrested and in hand

cuffs.

11 . The DistrictÔs allegations closely follow Z.L.Ôs contemporaneous

ac count of the incident (and concomitantly reject DeluciaÔs) . In his

handwritten statement for the school police, dated November 14, 2019, Z.L.

recalled:

I was sitting down doing work then he said wheres

your I.D. then i showed him it he said put it on I said

OK then he said now you brat and i said one sec

because I was typeing something and he said if you

would listen and stop being stupid you would hear

me and I said Ñim stupid?Ò and he said yes look how

stupid you look . Then he kept arguing with me I said

shut the fuck up . He said oh ok little brat then

someone was talking to me then he said you wanna

talk get out then i said ok when I was walking out

he said Ñyour nothing but a pussyÒ I said Im a what?

then he kept mo ving up then he said ÑA pussyÒ then

I went in his face then he said, Ñwhat you wanna doÒ

then thatÔs it [.]

12 . At 9:35 a.m., right after the incident, Delucia submitted a Student

Referral Form on Z.L., stating as grounds , the following:

Student [Z.L.] tr ied to come into class without an ID .

Told to get one . He argued with me . Then when he

came in he was told to put it on . He refused . He was

told to stop whining about it and put it on . Then he

said, ÑIf you donÔt shut the fuck up I will slap the

fuck out o f you. Ò [I] called for security and student

kept disputing the class . I stood in the hallway and

the student kept talking . Then I held the door open

waiting for security and the student said, ÑYou bitch

ass nigga, I will slap the fuck out of you . You are a

pussy. Ò I heard about you and you are on probation .

Then he said, Ñwhat the fuck are you looking at? Ò I

said, ÑNothing. Ò He then got in my face under the

camera and in front of the security guard, Rod . He

kept getting in my face about two inches away and

cursing and threatening me . Rod took him away .

Z.L. was given a five - day suspension for using profanity in front of a staff

member .

13 . Based on the conflicting evidence presented, it is found that Z.L.

arrived at class on November 14, 2019, without hi s ID badge . Following

school policy, Delucia refused to allow Z.L. to enter the classroom without

identification . The teacher instructed Z.L. to leave and return with a

temporary ID sticker . Z.L. grumbled about this, arguing that he would be late

for class if required to obtain a temporary ID, and that his other teachers did

not enforce the ID requirement . Z.L. ultimately complied, however, and

departed.

14 . When Z.L. returned, he held a temporary ID sticker in his hand but

refused to peel off its paper ba cking and put the sticker on his shirt, which is

how the temporary ID is supposed to be worn . Delucia directed Z.L. to wear

the temporary ID properly, but Z.L. obstinately refused to comply, forcing

Delucia to repeat this reasonable command several times, to no avail . Z.L.

defiantly informed Delucia that he would put the sticker on when he was

ready, as opposed to when the teacher wanted him to do so . Delucia advised

Z.L. that he would call security and have the student removed for

noncompliance with the ID rule and warned Z.L. not to make a stupid

decision .

15 . At this point, Z.L. erupted and began threating Delucia with violence .

The undersigned finds that DeluciaÔs statement in the Student Referral

Form , as set forth above in paragraph 12, credibly reco rds Z.L.Ôs abusive and

vulgar language . Like K.L. Ôs threatening behavior in the earlier incident,

Z.L.Ôs combative conduct arguably constituted a criminal assault . It is

understandable , therefore, that Delucia wanted Z.L. to be arrested . Harder to

understand is why the School Board would regard DeluciaÔs justifiable desire

to see Z.L. brought to justice as grounds for disciplining the teacher .

16 . The persuasive evidence does not establish, by the greater weight, that

Delucia called Z.L. a Ñ pussy, Ò tried to pick a fight with the student, dared Z.L.

to hit him, or laughed about the situation . To the contrary, the likelihood is

that Z.L. attributed his own conduct to, and projected his own motives on, the

real victim ( Delucia ) , and the School Board t ook the ball and ran with it.

D ETERMINATION OF U LTIMATE F ACT

17 . The School Board has failed to prove its allegations against Delucia by

a preponderance of the evidence.

C ONCLUSIONS O F L AW

18 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

19. A district school board employee against whom a disciplinary

proceeding has been initiated must be given written notice of the specific

charges prior to the hear ing . Although the notice Ñ need not be set forth with

the technical nicety or formal exactness required of pleadings in court, Ò it

should Ñ specify the [statute,] rule, [regulation, policy, or collective bargaining

provision] the [school board] alleges has b een violated and the conduct which

occasioned [said] violation. Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).

2 0 . Onc e a school board, in its notice of specific charges, has delineated

the offenses a lleged to justify termination, those are the only grounds upon

which dismissal may be predicated . See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep Ô t of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep Ô t of Bus. & Prof Ô l

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep Ô t of Prof Ô l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep Ô t of Prof Ô l Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den . , 576 So. 2d 295

(Fla. 1991).

21 . In an administrative proceeding to suspend or dismiss a member of

the instructional staff, the school board, as the charging party, bears the

burden of proving, by a preponderance of the evidence, each element of the

charged offense(s ) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch. Bd. , 629 So. 2d 226 (Fla.

1st DCA 1993).

22 . The instructional staff member Ô s guilt or innocence is a question of

ultimate fact to be decided in the context of each alleged violation . McKinney

v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

23 . In its Amended Administrative Complaint, the D istrict charged

Delucia with Misconduct in Office and other offenses, based on the

allegations of fact set forth in paragraphs 4 and 10 above.

24 . The School Board , however, failed to prove, by a preponderance of the

evidence, that Delucia behaved as alleged . Thus, the charges against Delucia

necessarily fail, as a matter of fact . Due to this dispositive failure of proof, it

is not necessary to render additional conclusions of law.

R ECOMMENDATION

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

R ECOMMENDED that the Broward County School Board enter a final order

exonerating Eric Delucia of all charges brought against him in this

proceeding, reinstating him to his teaching posit ion , and awarding Delucia

back salary and benefits as required under section 1012.33(6)(a) .

D ONE A ND E NTERED this 29th day of March , 202 1 , in Tallahassee, Leon

County, Florida.

S

J OHN G. V AN L ANINGHAM

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March , 202 1 .

C OPIES F URNISHED :

Andrew Carrabis, Esquire Matthew Mears, General Counsel

Broward County School Board Department of Education

600 Southeast Third Avenue, 11th Floor Turlington Building, Suite 1244

Fort Lauderdale, Florida 33301 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Branden M. Vicari, Esquire Richard Corcoran, Commissioner

Herdman & Sakellarides, P.A. of Education

29605 U.S. Highway 19 North, Suite 110 Department of Education

Clearwater , Florida 33761 Turlington Building, Suite 1514

325 West Gaines Street

Robert W. Runcie, Superintendent Tallahassee, Florida 32399 - 0400

Broward County School Board

600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

N OTICE O F 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.