20-005136TTS Miami-Dade County School Board vs. Rodney Weatherspoon Status: Closed Recommended Order on Wednesday, March 17, 2021.

Summary: School Board failed to meet its burden and demonstrate just cause to suspend Respondent.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 2 0 - 5136 TTS

R ODNEY W EATHERSPOON ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was conducted in this case by video conference via

Zoom on January 12, 202 1 , before Administrative Law Judge June C. McKinney of

the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Michele Lara Jones, Esquire

Miami - Dade County School Board

1450 N ortheast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 US Highway 19 N orth , Suite 110

Clearwater, F lorida 33761 - 1526

S TATEMENT OF T HE I SSUE

Whether just cause exists to sustain Respondent ' s five - day suspension from

emp loyment without pay with the Petitioner based on the allegations in the Notice

of Specific Charges.

P RELIMINARY S TATEMENT

By letter dated November 19, 2020, the Miami - Dade County School Board

( " Petitioner , " " School Board , " or " District " ) notified Rodney Weatherspoon

( " Respondent " or " Weatherspoon " ) that on November 18, 2020, the School Board

took action to suspend him without pay for five workdays.

On or about November 18, 2020, Respondent timely elected to dispute the

reasons for the suspension and re quested a hearing.

On November 20, 2020, the matter was referred to the Division of

Administrative Hearings ( " DOAH " ). The matter was assigned to the undersigned

administrative law judge.

On December 9, 2020, Petitioner filed its Notice of Specific Charges setting forth

the factual and legal grounds for the proposed discipline.

The hearing proceeded as scheduled on January 12, 202 1 .

At hearing, Petitioner stipulated to proceed on the Notice of Specific Charges.

Petitioner presented the testimony of f ive witnesses: Veronica Bello; Kendra

Copeland - Howard ; K.C.; B.C; and Maria Zabala. Petitioner ' s Exhibits 1 through 11

were admitted into evidence. Respondent testified on his own behalf and presented

the testimony of one witness: Leonardo Wortman. Respondent ' s E xhibit s 1

through 11 were admitted into evidence.

At the close of the hearing, the parties stipulated that the proposed

recommended orders would be due ten days after the filing of the transcript. Both

parties ti mely filed proposed recommended orders, which have been considered in

the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to the 2019 Florida Statutes

version, which was in effect at the time of the alleged misco nduct at issue in this

proceeding.

F INDINGS OF F ACT

1. Petitioner is a duly - constituted district school board charged with the duty to

operate, control, and supervise all free public schools within Miami - Dade County ,

Florida. Article IX, § 4(b), Fla. Cons t.

2. At all times relevant to the proceeding, Respondent has been employed by the

School Board pursuant to a collective bargaining agreement under the United

Teachers of Dade ( " UTD " ) .

3. Weatherspoon has been a physical education teacher for 28 years with the

School Board .

4. In 2013, Weatherspoon started working at Hibiscus Elementary School

( " Hibiscus " ) . He is the only physical education teacher for grades two through five.

5. Weatherspoon runs a structured class. When students arrive at th eir physical

education class , they are expected to stand in a straight quiet line, and then go into

the physical education shelter , and sit down for taking roll.

6. Weatherspoon uses a chain of consequences for student misbehavior. It

progresses from warnings , to exclusion from activities , to parent contact, then to

detentions and referrals.

7. During the 2018 - 2019 school year at Hibiscus, K.C. was a fourth - grade

student in Respondent ' s physi cal education class.

8. On or about March 5, 2019, K.C. and another student got into a physical fight.

Weatherspoon excluded K.C. and the other student from activities and put them in

time - out for two days, which meant K.C. had to sit next to the wall during the

physical education class instead of participating.

9. A fter K.C. ' s punishment was completed, he should have been rejoining the

activities for the physical education class.

10. However, on March 7, 201 9 , when rejoini ng the class, K.C. attempted to be

first in line and started fighting with student J to be first. Weatherspoon responded

to K.C. ' s second fight by instructing K.C. to go back to the time - out area against the

wall because he was putting his hands on somebod y again.

11. Weatherspoon also instructed student J to go to the time - out area for his

misbehavior and student J went to time - out.

12. K.C. repeatedly told Weatherspoon " no " and refused to go back to the time -

out area after Weatherspoon instructed him to do so.

13. Another student , B.C. , walked over during Weatherspoon ' s attempt to have

K.C. go back to time - out and then B.C. informed Weatherspoon that K.C. had done

his time already. Weatherspoon responded to B.C., " Don ' t get involved with this.

This is not your concern. " Afterwards, B.C. immediately turned around, and walked

back to sit down.

14. Next, Weatherspoon redirected his attention back to K.C. , repeatedly

instructing him to go sit at the wall . K.C. continued to respond " no " he was not

going to sit at the wall . Weatherspoon firmly direct ed K.C. to sit at the wall with a

raised voice . Upset , K.C. walked out of the gym instead of following Weatherspoon ' s

instructions for his misbehavior .

15. Weatherspoon called security to repo rt that K.C. had left the class early.

16. The next day , Weatherspoon attended a parent teacher conference with

Principal Veronica Bello ( " Bello " ) and K.C. ' s parents about his interim failing grade

in physical education . After the discussion about K.C. ' s interim failing grade , the

meeting turned confrontational and K.C. ' s father accused Respondent of pushing

K.C . , which was the first time Weatherspoon was made aware of an y allegation he

pushed K.C.

17. The School Board investigated the K.C. pushing alleg ation. During the

investigation, written statements were taken from five students , including B.C . ,

that were in K.C. ' s physical education class. None of the students reported

witnessing Weatherspoon push K.C. on March 7, 2019.

18. K.C. ' s written statement dated March 11, 2019, stated that Weatherspoon

pushed him twice and that Weatherspoon also pushed B.C. once on March 7, 2019.

19. Ultimately, based on the investigation, probable cause was determined to

support the allegation that Weat herspoon pushed K.C. On August 22, 2019, a

conference - for - the - record ( " CFR " ) meeting was held to discuss the investigative

findings. Respondent was present at the CFR .

20. Following the CFR, the School Board adopted the recommendation that

Respondent be s uspended for five days for the March 7, 2019, incident because

Respondent had been previously counseled and issued a directive not to interact

with children by pushing them .

Prior Disciplinary History

21. On or about September 13, 2018 , Weatherspoon received a written

reprimand after a School Board investigation concluded that he shouted , kicked ,

and pushed a student. Weatherspoon ' s reprimand , in pertinent part, directed

Respondent to :

1. Strictly adhere to all Miami - Dade School Board Policies;

specif ically, 3210, Standards of Ethical Conduct; 3210.01,

Code of Ethics; and 3213, Student Supervision and

Welfare.

2. Cease and desist from using physical means to discipline

or redirect students while working for M - DCPS;

3 . Cease and desist from placing y our hands on students

for any reason while working as an employee of M - DCPS;

and

4.Safeguard emotional and physical well - being of students

at all times while working as an employee of the District.

* * *

8 . Conduct yourself; both in your employment and in the

community, in a manner that will reflect credit upon

yourself and M - DCPS . P9 - 10

Hearing

22. At hearing , K.C. admitted that " [he] got pretty upset " when he was told to go

to time out again. K.C. unpersuasively claimed during the hearing that Respondent

pushed him in the stomach one time. However, K.C. ' s testimony is contrary to his

written statement from the investigation where he wrote that Weatherspoon

pushed him twice. 1 Similarly, K.C. also testified Weatherspoon pushed B.C., which

conflicts with B.C. ' s testimony at hearing that Respondent " did not touch [her]. " 2

The undersigned does not credit K.C. ' s testimony based on his contradictory

statements about the events on the date of the alleged incident, which diminish es

the trust worthiness of his testimony.

23. At hearing, Weatherspoon provided credible testimony regarding the events

o f March 7, 2019, and his interactions with K.C . Weatherspoon testified that an oral

dispute occurred between K.C. and h im. Weatherspoon credibly explained that a fter

directing K.C. to go to time - out several times, K.C. repeated ly refused to go to the

wall stating, " no, " and then K.C. walked out of the physical education class .

Weatherspoon also credibly made clear , " I did not touch him. "

Findings of Ultimate Fact

24. Weatherspoon ' s reliable testimony precludes a finding that he acted in the

fashion alleged in the Notice of Specific Charges. Accordingly, the undersigned finds

that Weatherspoon ' s credible and persuasive testimony established that no physical

contact was made with K.C. on March 7, 2019. Therefore, no competent substantial

1 Pet. Ex. 8.

2 The undersigned finds that B.C.Ôs testimony that Weatherspoon pushed K.C. is not credible

because the evidence shows that B.C. was walking away back to her seat when the alleged incident

occurred. Additionally, B.C. did not report any pushing incident in her original student statement.

Moreover, B.C. only reported an alleged incident when questioned by an investigator a pproximately

seven months later. Likewise , the undersigned rejects K.C.Ôs motherÔs testimony because if a parent

had been informed that their child was pushed by a teacher, in all likelihood , that allegation would

be the first thing and main topic discusse d at the parent teacher meeting before any failing grades ,

not the discussion topic at the end of the meeting.

evidence establish ed any factual basis for the School Board ' s proposal to suspend

Respondent for five days for the offenses charged in t he Notice of Specific Charges.

C ONCLUSIONS OF L AW

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

pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020).

26. This is a disciplinary proceeding in which Petiti oner seeks to suspend

Respondent from his employment, without pay, for five workdays.

27. Petitioner has the burden of proving that it has " just cause " to suspend

Respondent ' s employment as a physical education teacher .

28. " Just Cause " is defined to include misconduct in office by section

1012.33(1)(a), Florida Statutes.

29. Petitioner ' s burden to prove the charges in the Notice of Specific Charges

against Respondent must be met by a preponderance of the evidence. McNeill v.

Pinellas C ty . Sch. Bd . , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990).

30. The preponderance of the evidence standard " is defined as ' the greater

weight of the evidence, ' Black ' s Law Dictionary 1201 (7th ed . 1999), or evidence that

' more likely than not ' tends to prove a certain proposition. " Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000). See also Haines v. Dep ' t of Child. & Fams. , 983 So. 2d

602, 606 (Fla. 5th DCA 2008).

31. In the Notice of Specific Charges filed against Respondent in this proceeding,

the School Board charge s Respondent with violati ng a variety of School Board

policies, as well as administrative rules, by alleging that Weatherspoon pushed the

student in the stomach against the wall , w hich establishes " just cause " for

Respondent ' s five - day suspension from employment.

32. Petitioner relies on Florida Administrative Code Rules 6 A - 5.056(2) and 6A -

10.081, and School Board Policies 3 210, 3 210.01, and 3 213 as the focal point of this

case for Respondent ' s charges .

Misconduct in Office

33. The State Board of Education has defined the term " Misconduct in Office " by

r ule 6A - 5.056(2), which provides, in relevant part:

(2) " Misconduct in Office " means one or more of the

following:

* * *

(b) A violation of the Principles of Professional Conduct for

the Education Profession in Florida [ " Principles of

Conduct " ] as adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school boa rd rules;

(d) Behavior that disrupts the student ' s learning

environment; or

(e) Behavior that reduces the teacher ' s ability or his or her

colleagues ' ability to effectively perform duties.

Principles of Professional Conduct

34. Petitioner charged Resp ondent with violating the Principles of Conduct, r ule

6A - 10.081, which provides, in relevant 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 nurture 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 the 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 colleagues, 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 edu cators 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 t o 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 intentionally violate or deny a student ' s legal

rights.

School Board Policy 3 210

35. Petitioner also charged Weatherspoon with a violation of School Board Policy

3 210, Standards of Ethical Conduct, that establishes Petitioner ' s standards of

employee conduct and provides, in relevant part:

All employees are representatives of the District and 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 n instructional staff member shall:

* * *

3. m ake a reasonable effort to protect the student from

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

mental and/or phy sical health and/or safety ;

* * *

7. n ot intentionally expose a student to unnecessary

embarrassment or disparagement ;

8. n ot intentionally violate or deny a student ' s legal rights;

School Board Policy 3 210.01

36. The School Board also charged Respondent with a violation of School Board

Policy 3 210.01, Code of Ethics, which provides, in relevant part:

Fundamental Principles

The fundamental principles 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 pressures to

do wrong .

F. Kindness Ï Being sympathetic, helpful, compassionate,

benevolent, agreeable, and gentle toward people and other

living things .

* * *

H. Respect Ï 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 .

I. Responsibility - Thinking before acting and being

accountable for their actions, paying attention to others

and responding to their needs. Responsibility emphasizes

our positive obligation to care for each other.

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the well - being

of the students and the honest performance of professional

duties core guiding principles .

B. To obey local, State, and national laws, codes and

regulations .

C. To support the principles of due process to protect the

civil and human rights of all individuals .

D. To treat all persons with respect and to strive to be fair

in all matters .

E. To take responsibility and be accountable for his/her

act ions.

* * *

G. To cooperate with others to protect and advance the

District and its students .

* * *

Conduct Regarding Students

Each employee:

A. 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;

* * *

E. shall not intentionally expose a student to unnecessary

embarrassment or disparagement ;

F. shall not intentionally violate or deny a student ' s legal

rights ;

School Board Policy 3 213

37. Petitioner also charged Respondent with a violat ion of School Board Policy

3 213, Student Supervision and Welfare, which provides, in relevant part:

Protecting the physical and emotional well - being of

students is of paramount importance. Each instructional

staff member shall maintain the highest professional,

moral and ethical standards in dealing with the

supervision, control, and protection of studen ts on or off

school property.

38. As set forth in the findings of fact above , the evidence, taken as a whole,

demonstrates that Respondent was involved in an oral confrontation with K.C. , who

would neither adhere to the rules nor follow the directives or consequences for his

misbehavior . The record establishes that after K.C. talked back to Weatherspoon

and refused to follow his firm directive s , K.C. left the gym upset . However, there is

no evidence that Respondent pushed K.C. against the wall or acted in an

inappropriate manner. Accordingly, Petitioner failed to prove by a preponderance of

the evidence that Respondent violated an y of the specified statutes, rules, or School

Board policie s alleged in the Notice of Specific Charges .

R ECOMMENDATION

Upon consideration of the Findings of Fact and Conclusions of Law reached, it is

R ECOMMENDED that the Miami - Dade County School Board enter a final order

dismissing the Notice of Specific Charges, rescinding its previous decision to

suspend Respondent without pay for five days , and awarding him back pay .

D ONE A ND E NTERED this 1 7 th day of March , 2021, in Tallahassee, Leon County,

Florida.

S

J UNE C. M CKINNEY

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 1 7 th day of March , 2021.

C OPIES F URNISHED :

Michele Lara Jones, Esquire Mark Herdman, Esquire

Miami - Dade County School Board Herdman & Sakellarides, P.A.

1450 Northeast Second Avenue , Room 430 29605 U.S. Highway 19 North , Suite 110

Miami, Florida 33132 Clearwater, Florida 33761 - 1526

Christopher J. La Piano , Esquire Matthew Mears, General C ounsel

Miami - Dade County School Board Department of Education

1450 Northeast Second Avenue , Room 430 Turlington Building , Suite 1244

Miami, Florida 33132 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Richard Corcoran, Commissioner of E ducation

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.