STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 16-2074TTS

LEONEL MARRERO,

Respondent.

/

RECOMMENDED ORDER

On July 1, 2016, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami Dade County Public Schools School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Leonel Marrero, pro se

1621 Southwest 93rd Court Miami, Florida 33165

STATEMENT OF THE ISSUE

The issues are whether Petitioner has just cause to dismiss Respondent for failing to attend work during duty hours and leaving his class unsupervised so as to constitute misconduct

in office, in violation of Florida Administrative Code Rules 6A-6.056(2) and 6A-6.056(4).

PRELIMINARY STATEMENT

The Notice of Specific Charges dated June 16, 2016, alleges that Petitioner employed Respondent in 1990. The Notice of Specific Charges alleges that, at about 10:00 a.m. on

October 29, 2015, Respondent left school without the approval or permission from the principal and without the knowledge of any of any administrators. Later, at lunch, Respondent's class allegedly stood idly in the hallway because Respondent had failed to appear to teach his sixth-period class.

On April 13, 2016, Petitioner suspended Respondent without pay and initiated dismissal proceedings for various violations, including misconduct in office and gross insubordination. On the following day, Respondent requested a formal administrative hearing.

At the hearing, Petitioner called three witnesses and offered into evidence 22 exhibits, which were all admitted. Respondent did not appear at the hearing.

The court reporter filed the transcript on August 8, 2016, and Petitioner filed a proposed recommended order on August 19, 2016.

FINDINGS OF FACT

1. Petitioner initially employed Respondent as a substitute teacher on February 26, 1990. From January 1991 through June 1991, Respondent was employed as a teacher at Petitioner's Braddock High School. From August 1991 through May 1993, Respondent was employed as a teacher at Petitioner's Coral Park Senior High School. From January 1994 through

   May 1994, Respondent worked as a substitute teacher at various of Petitioner's schools. From March 1994 through June 1994, Respondent was employed as a teacher at Petitioner's Miami Central Senior High School.

2. Starting in August 1994, Petitioner employed Respondent as a teacher at Miami Coral Park Senior High School. He was continuously employed at this school, except for a suspension from March 13 through April 24, 2014, until Petitioner suspended him on April 13, 2016, for the acts and omissions that are the subject of this proceeding.

3. Spring 2006 marked the first recorded instances of Respondent's attendance problems. On April 5, 2006, Petitioner issued warning memoranda due to Respondent's tardiness. On April 28, 2006, Petitioner summarized a Conference-for-the-

   
   

   Record (CFR) for Respondent's repeated tardiness in reporting for work.

4. A few years later, attendance problems emerged again, evidently at a much greater volume. On March 6, 2013, Respondent failed to report to work at the required time and never called to advise the administration that he would be late. He had also been tardy and failed to call on the two preceding days, as well as on 13 other days during the 2012-13 school year. On March 6, 2013, Petitioner issued a Memorandum of Concern. Respondent was tardy three more days after receiving the memorandum, so, on May 22, 2013, Petitioner issued a CFR summary directing Respondent to report to work on time.

5. On October 15, 2013, Petitioner issued a memorandum determining that Respondent had been selling candy to students without authorization. On November 6, 2013, Petitioner issued a CFR summary containing directives about attendance and selling candy to students.

6. On January 13, 2014, Petitioner issued a CFR summary determining that Respondent had used vulgar language at students, thrown a toilet-paper roll at one student, and commanded the student to get the "fuck" out of his classroom. Petitioner's representatives asked for Respondent's resignation, but he declined to resign. Respondent countered that he was having a difficult year because the administration had "changed

   
   

   drastically" his schedule, and the science department chair had "bullied" him. Before Petitioner had determined the discipline for this offense, on January 28, 2014, Petitioner issued a CFR summary determining that Respondent had taken students off campus in his vehicle, often leaving students unsupervised to pick flowers from a garden for a lab experiment. In response to this charge, Respondent declared that "things have changed and [he] realize[d] that it is a new day." The CFR summary noted that Respondent also had often left his students in the classroom unsupervised; used disparaging language toward students, including calling one student, "retarded"; and kissed the top of the head of a female student. Petitioner's representative offered Respondent the option of resignation, which he again declined.

7. On March 7, 2014, Respondent accepted an offer of a 30-day suspension, evidently for the offenses noted in the

   preceding paragraph, and he served this suspension from March 12 through April 23, 2014.

8. After the calamitous 2013-14 school year, during which he was disciplined on four occasions, Respondent's offenses focused exclusively on attendance. On February 2, 2015, Petitioner issued an Absence and Tardiness from Worksite Directives Memorandum. This noted absences and tardies

   on 22 days of the still-ongoing 2014-15 school year. On

   
   

   February 11, 2015, Petitioner issued a CFR summary detailing Respondent's history of nonattendance, noting, in particular, that on January 9, 2015, at about 9:50 a.m., Respondent left his classroom unattended, and several students accessed his computer and changed their grades. Petitioner's representatives advised Respondent that his repeated failure to adhere to directives demanding that he adhere to basic attendance policies would result in gross insubordination upon recurrence.

9. At the start of the 2015-16 school year, Petitioner issued a Absence/Tardiness Directives Reminder memorandum, advising Respondent that the February 11 CFR summary continued to apply. On September 22, 2015, Petitioner issued a Reminder of Absence from the Worksite Directives and a reminder of sign- in procedures. However, between September 22 and October 27, 2015, Respondent failed to sign in on 21 occasions. On

   October 27, 2015, Petitioner issued a Professional Responsibilities Memorandum covering these 21 violations of Petitioner's attendance policy, and, on November 4, 2015, Petitioner issued a CFR summary reprimanding Respondent for his failure to adhere to attendance policies following a meeting to which Respondent was 20 minutes late.

10. For the preceding 19 months, Respondent had displayed repeated disregard for his basic professional responsibilities, including even attendance. Given the number of violations in a

    
    

    relative brief span, Respondent's compliance with policies would need to improve to rise to the point that it could be described as checkered. While facing discipline for the absences and tardies documented in the October 27 memorandum, two days later, Respondent left the school campus at about 10:00 a.m. to go home and sleep, not informing anyone that he was leaving the campus and not returning to teach his sixth-period class, which, unsupervised, was found milling around a hallway after Respondent had chosen to transform himself from a professional employee to a "no call/no show."

11. The applicable collective bargaining agreement between Petitioner and the union of its instructional employees (CBA) "recognize[s] the principle of progressive discipline," but also requires that the "degree of discipline shall be reasonably related to the seriousness of the offense." CBA, Article XXI, Section 1.A.1. The CBA provides for the suspension or dismissal of instructional employees, as provided by Florida Statutes.

    Id. at Section 1.B.1.a.

    
    

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction of the subject matter.

    
    

    §§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

    
    

13. Petitioner bears the burden of proving the material allegations by a preponderance of the evidence. § 120.57(1)(j);

    
    

    Allen v. School Bd. of Dade Cnty., 571 So. 2d 568 (Fla. 3d DCA

    
    

    1990) (teacher-dismissal case).

    
    

14. Petitioner may dismiss an employee for just cause.

    
    

    § 1012.33(1)(a) and (6)(a). Just cause includes gross insubordination. § 1012.33(1)(a). Florida Administrative Code Rule 6A-5.056(4) defines "gross insubordination" as "the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties."

15. Petitioner has proved gross insubordination.

    
    

    Repeatedly, Petitioner made explicit what properly requires no restatement: an instructional employee must timely report to work and supervise his students. Respondent disregarded these directives so often for so long as to constitute gross insubordination.

16. Petitioner has already imposed numerous reminders, numerous directives, at least one reprimand, and a 30-day suspension without pay. Under progressive discipline, the lone discipline remaining is dismissal.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding just cause for dismissing Respondent for gross insubordination

in repeatedly refusing Petitioner's directives that he attend school and supervise his students.

DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 Administrative Hearings this 27th day of September, 2016.

COPIES FURNISHED:

Kim M. Lucas, Esquire

Miami Dade County Public Schools School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 (eServed)

Christopher J. La Piano

Miami Dade County Public Schools School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 (eServed)

Leonel Marrero

1621 Southwest 93rd Court Miami, Florida 33165

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

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 33132-1308

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT 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.

Docket for Case No: 16-002074TTS

Orders for Case No: 16-002074TTS