20-005245 Palm Beach County School Board vs. Carl Carralero Status: Closed Recommended Order on Thursday, July 8, 2021.

Summary: The School Board proved that Respondent?s conduct justified termination of his employment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ALM B EACH C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 5245

C ARL C ARRALERO ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge ( " ALJ " ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administra tive Hearings

( " DOAH " ) on April 29 , 202 1 , by Zoom conference.

A PPEARANCES

For Petitioner: V. Danielle Williams, Esquire

S chool District of Palm Beach County

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 331

West Palm Beach, Florida 33406

For Respondent: Carl Carralero , pro se

6705 Lytle Court

West Palm Beach, Florida 33405

S TATEMENT OF T HE I SSUE

The issue in this case is whether just cause exists for P alm Beach County

School Board ( " Petitioner " or " School Board " ) to terminate Carl CarraleroÔs

( " Respondent " or " Mr. Carralero " ) employment for the reasons set forth in the

Adm inistrative Complaint .

P RELIMINARY S TATEMENT

In correspondence dated October 20, 2020, PetitionerÔs Superintendent

iss ued a letter informing Respondent that the Superintendent would

recommend suspension without pay and termination of his employment at

th e November 4, 2020 , meeting of the School Board . The stated basis for the

SuperintendentÔs action was that just cause existed to warrant RespondentÔs

termination for : (1) Violations related to Inappropriate Interaction with a

CoWorker/Threats of Violence ; (2) Ethical Misconduct and Insubordination;

and (3) Failure to Follow Policy, Rule , or Directive(s). On November 4, 2020,

the School Board adopted the SuperintendentÔs recommendations to suspend

Respondent without pay and to terminate his employment. There after,

Respondent timely requested a hearing at DOAH .

The final hearing took place on April 29, 2021. At the hearing, Petitioner

offered the live testimony of Respondent ; Chester Ripple ("Mr. Ripple"),

Maintenance Technician II ; Barry Hedges , Maintenance Technician II ;

Director of Environment & Conservation Services Kesta James ; and Human

Resources Manager Carol Stewart Martin . P etitionerÔs Exhibits 1 through 25

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

not introduce any e xhibits. The one - volume hearing Transcript was filed with

DOAH on May 20, 2021. Petitioner submitted a P roposed R ecommended

O rder, which was timely in accordance with an agreed - upon de adline of

30 days following the filing of the Transcript. PetitionerÔs P roposed

R ecommended O rder was duly considered in the preparation of this

Recommended Order.

All references to Florida Statutes are to the 2019 codification in effect at

the time of the matters relevant to these proceedings.

F INDINGS OF F ACT

1. Responde nt was hired by the School Board on December 16, 2013.

2. Respondent was employed as a Maintenance Technician II in the Plant

Operations Department.

3. RespondentÔs last day of work with the School District was November 2,

2020.

4. Respondent was aware of the School BoardÔs Code of Ethics and knew

that the same applied to him as an employee.

5. RespondentÔs employment was governed by the collective bargaining

agreement between the School District and Service Employees International

Union/Florida Public Ser vices Union ( " Collective Bargaining Agreement " ) .

RespondentÔs Conduct

6. In March of 2020, Respondent and Mr. Ripple mistakenly reported to a

school that was the incorrect location based on their assigned work order . The

two men had a disagreement as to ho w the mistake was handled.

7. Based on the unrefuted evidence, the disagreement escalated into a

verbal altercation wherein Respondent screamed at Mr. Ripple, saying " fuck

you " and calling him a " mother fucker. " Mr. Ripple acknowledged that he

responded t o Respondent by repeating the same profanities back to him.

During the altercation, Mr. Ripple was standing in the bed of a truck that

was used to transport materials to work sites. Respondent, who was standing

on the ground, told Mr. Ripple to come down f rom the truck so that

Respondent could " kick his ass, " and made other threats of physical violence.

Mr. Ripple, however, remained standing in the truck bed until Respondent

left. Other employees witnessed the altercation.

Pr ogressive Discipline

8. The Col lective Bargaining A greement includes a provision that outlines

steps in progressive discipline of employees. The progressive discipline steps

are: 1) a verbal reprimand with a written notation ; 2) written notation ;

3) suspension without pay ; and 4) termi nation.

9 . Human Resources Manager Carol Stewart Martin ( " Ms. Martin " ),

testified credibly that, based on her investigation, RespondentÔs conduct

during the March 2020 incident was part of a recurring behavioral pattern

and that other employees were concer ned.

10. Respondent has received prior discipline throughout his employment

with Petitioner .

11 . Th e investigation of the March 2020 incident, which is the subject of

the present case, was Ms. MartinÔs third investigation involving Respondent

either being violen t or making threats of violence against his coworkers .

12. In 2016, Respondent received a Notice of Ten - Day Suspension Without

Pay based on a physical fight between Respondent and a coworker.

13. On another occasion, Respondent was investigated by Petitioner after

a coworker complained that Respondent hit him.

14. Respondent was directed, in writing, by Petitioner , not to engage in

similar conduct in the future.

C ONCLUSIONS OF L AW

15 . DOAH has jurisdiction over the subject matter and the parties.

§§ 120.569 and 120.57, Fla. Stat.

16. The School Board is responsible for the operation, control,

administration, and supervision of all free public schools within the d istrict.

Art. IX, § 4(b), Fla. Const.; §§ 1001.30 and 1001.32, Fla. Stat . The School

B oardÔs powers and duties include providing f or the termination of

employees. § 1012.22(1)(f), Fla. Stat.

17. The default standard in this case would require Petitioner to bear the

burden of proving the allegations against Respondent by a preponderance, or

greater weight, of the evidence. See McNeil v. Pinellas Cty. Sch. Bd ., 678 So.

2d 476, 477 (Fla. 2d DCA 1996). Instead, the parties have contracted to be

bound by the clear and convincing standard through a provision in the

Collective Bargaining Agreement. Clear and convincing evidence "requires

more proof than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753

(Fla. 1997). In the present case, however, the applicable bur den is

immaterial, because Petitioner sufficiently proved its case by either measure.

1 8 . Pursuant to Article 17, Section 1 of the Collective Bargaining

Agreement: " Without consent of the employee and the Union, disciplinary

action may not be taken agains t an employee except for just ca u se, and this

must be substantiated by clear and convincing evidence which supports the

recommended disciplinary action. "

1 9 . Pursuant to Article 17, Section 7 of the Collective Bargaining

Agreement:

Except in cases which clearly constitute a real and

immediate danger to the District, a District

employee and/or a child/children or the

actions/inactions of the employee constitute such

clearly flagrant or purposeful violations of

reasonable School Board rules and regulations,

progressive discipline shall be administered as

follows:

a. Verbal Reprimand with a Written Notation;

b. Written Reprimand;

c. Suspension without Pay; and

d. An employee may be dismissed when appropriate

in keeping with provisions of this Article, including

just cause and applicable laws.

20 . The record in this case establishes that there is just cause to terminate

RespondentÔs employment, in support of the first charged violation,

Inappropriate Interaction with a Co - Worker/Threats of Violence, in violation

of School Board Policy 3.02(4)(d), (4)(e), (5)(i), Code of Ethics.

2 1 . School Board Policy 3.02(4)(d), Code of Ethics, provides, in pertinent

part, that each employee agrees and pledges to " treat all students and

individuals with respect and to s trive to be fair in all matters. " Respondent

did not treat Mr. Ripple with respect when he insulted him with profane

language and threatened him with physical violence. RespondentÔs conduct

also violated School Board Policies 3.02(4)(e) and (5)(i) which pr oscribe,

respectively, " harassing behavior of students or colleagues " and failing to act

in a " positive manner that enhances the public interest and trust. "

2 2 . The record in this case establishes that Respondent committed the

second charged violation, Et hical Misconduct, in violation of School Board

Polic y 3.02(4)(a) and (d).

2 3 . School Board Policy 3.02(4)(a ), Accountability and Compliance, states

in pertinent part, that " each employee agrees and pledges to provide the best

example possible; striving to demonstrate excellence, integrity and

responsibility in the workplace. "

2 4 . School Board Policy 3.02(4)(d), Accountability and Compliance , states

in pertinent part, that " each employee agrees to treat all students and

individuals with respect and to striv e to be fair in all matters. "

2 5 . In insulting Mr. Ripple with profane language and threatening him

with physical violence in the presence of other employees, Respondent did not

provide the best example for other employees, nor did he demonstrate

excellenc e, integrity, and responsibility in the workplace.

2 6 . The record in this case establishes that Respondent committed the

third charged violation, Failure to Follow Policy/Rule or Directive(s) , i n

violation of School Board Policy 3.10(6), Conditions of Empl oyment with the

District, and School Board Policy 1.013(1), Responsibilities of S chool District

Personnel and Staff.

2 7 . School Board Policy 3.10(6), Conditions of Employment with the

District, states , in pertinent part , that " the District requires its emp loyees to

carry out their responsibilities in accordance to School Board Policy 1.013 (as

may be amended), their job descriptions and reasonable directives from their

supervisors that do not pose an immediate serious hazard to health and

safety or clearly violate establishe d law or policy. "

2 8 . School Board Policy 1.013(1), Responsibilities of School District

Personnel and Staff, states in pertinent part, " it shall be the responsibility of

the personnel employed by the district È to carry out their assigned duties in

accordance with federal laws, rules, state statutes, state board of education

rules, school board policy, È and local school and area rules. "

2 9 . The record in this case is clear that Respondent engaged in a pattern

of conduct that he knew viola ted School Board policies and was

inappropriate. Respondent was previously disciplined for physical violence

against an employee and informed that the same or similar conduct would

result in disciplinary action up to and including termination.

30 . The reco rd in this case is clear that Respondent insulted Mr. Ripple

with profane language and threatened him with physical violence in violation

of previous directives to refrain from such conduct .

3 1 . The record in this case is clear that , as a result of Respond entÔs prior

t en - d ay s uspension without p ay, a recommendation to terminate his

employment is the next step in the progressive disciplinary provision of the

Collective Bargaining Agreement.

R ECOMMENDATION

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

R ECOMMENDED that t he Palm Beach County School Board enter a final order

suspending Respondent without pay and terminating his employment.

D ONE A ND E NTERED this 8th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

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 8th day of July , 2021 .

C OPIES F URNISHED :

Carl Carralero Jean Marie Middleton, Esquire

6705 Lytle Court School District of Palm Beach County

West Palm Beach, Florida 33405 Office of the General Counsel

3300 Forest Hill Boulevard , Suite C - 331

V. Danielle Williams, Esquire West Palm B each, Florida 33406

School District of Palm Beach County

Office of the General Counsel Donald E. Fennoy, II, Ed.D. , Superintendent

3300 Forest Hill Boulevard , Suite C - 331 School District of Palm Beach County

West Palm Beach, Florida 33406 3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

Matthew Mears, General Counsel

Depa rtment of Education

Turlington Building, Suite 1244

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 submi t 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.