STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, Petitioner, vs. VERNARD M. WHITLEY, Respondent. / | Case No. 19-6569 |
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case by video- conference via Zoom on June 25, 2020, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Petitioner: Christopher J. La Piano, Esquire
Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430
Miami, Florida 33132
For Respondent: Branden M. Vicari, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761
STATEMENT OF THE ISSUE
Whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board.
PRELIMINARY STATEMENT
By letter dated November 21, 2019, the Miami-Dade County School Board (“Petitioner,” “School Board,” or “District”) notified Vernard M. Whitley (“Respondent” or “Whitley”) that the School Board took action on
November 20, 2019, to suspend him without pay and initiate dismissal proceedings “for just cause, including, but not limited to: continued gross insubordination; and violation of School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare.”
On or about November 25, 2019, Respondent timely elected to dispute the reasons for the termination and requested a hearing.
On December 10, 2019, the matter was referred to DOAH. The matter was assigned to the undersigned administrative law judge.
On February 27, 2020, Petitioner filed its Notice of Specific Charges setting forth the factual and legal grounds for the proposed discipline.
A final hearing was scheduled for May 19, 2020. After a continuance for good cause, the case proceeded as rescheduled on June 25, 2020.
At hearing, Petitioner presented the testimony of two witnesses: M.G. and Carlos Diaz. Petitioner’s Exhibits 1 through 8, 12, and 13 were admitted into evidence. Respondent testified on his own behalf, but did not proffer any exhibits for admission into evidence.
At the close of the hearing, the parties stipulated that the proposed recommended orders would be due 30 days after the filing of the transcript. The two-volume Transcript of the final hearing was filed with DOAH on
August 24, 2020. The undersigned granted a Joint Motion for Extension of Time to File Proposed Recommended Orders, and the parties were given until September 17, 2020. Both parties filed timely proposed recommended orders, which have been considered in the preparation of this Recommended Order.
Unless otherwise noted, all statutory references are to the 2017 Florida Statutes version, which was in effect at the time of the alleged misconduct at issue in this proceeding.
FINDINGS OF FACT
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. Const.
In 2010, Whitley started working for the School Board as a school security monitor.
During the 2016-2017 school year, Whitley was assigned to Thomas Jefferson Middle School (“Thomas Jefferson”) as a security monitor. He remains employed in that role at Thomas Jefferson presently.
Whitley’s job duties and responsibilities include, but are not limited to, maintaining the safety of the children, ensuring the children make it to class on time, assisting with any problems that may be going on in the school, and monitoring the security cameras.
At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a continuing contract.
The incident giving rise to this proceeding occurred on February 6, 2017.
On February 6, 2017, Whitley was patrolling his assigned hall and noticed that M.G., a 13-year-old sixth grader, was out of class and sitting at Respondent’s desk in the hallway.
Whitley requested that M.G. get out of the chair, and M.G. refused to get out of the desk.
According to M.G., after M.G. refused, Whitley flipped the desk while he was seated, which caused M.G. to fall and hit his head on the floor. There is conflicting evidence as to what happened when Whitley approached the desk (“incident”).
At hearing, M.G. credibly testified that he reported the incident to Principal Robin Atkins the same day and that he also got an ice pack for his head.
Almost a month later, the Office of Professional Standards opened an investigation regarding the incident. Afterward, Respondent was notified that M.G. accused him of flipping the desk that he was sitting in and causing him to hit his head as a result.
In 2017, law enforcement interviewed Respondent.
The matter was ultimately turned over to the School Board's General Investigative Unit (“GIU”). The investigation took approximately two years to conclude.
Even though Thomas Jefferson maintained security footage and recorded videos of the hallway where the incident occurred, no video footage existed for anyone to review regarding the incident.
Based on its investigation, on or about May 30, 2019, GIU determined that there was probable cause to support the allegation that Respondent had violated School Board Policy 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare. Respondent learned about the determination soon thereafter.
After summer break, when Respondent returned to work, on or about August 27, 2019, Carlos Diaz, the district director of the School Board's Office of Professional Standards conducted a conference-for-the-record (“CFR”) meeting to discuss the pending allegations from the GIU case. Respondent was present at the CFR with his union representative.
Following the CFR, the Disciplinary Review Team (“DRT”) met. DRT considered Respondent’s repeated and similar conduct for inappropriate contact with students and Respondent’s prior directives in its decision to discipline Respondent. DRT recommended that Respondent be terminated. The recommendation was adopted by the School Board.
Prior Disciplinary History
During his employment with the School Board, Whitley has been disciplined twice regarding inappropriate touching of students prior to the incident. The School Board kept a record of Respondent’s discipline in Whitley’s personnel file.
On or about April 16, 2013, Whitley received a written reprimand after an investigation concluded that he shoved and touched a student’s shoulder repeatedly. Whitley’s reprimand directed Respondent to “[r]efrain from any physical touching of students.”
In November 2013, Whitley was suspended for 12 workdays without pay after an investigation concluded that Respondent inappropriately picked up and dropped a student to the ground.
The CFR memorandum regarding Respondent’s November 2013 occurrence directed Whitley to: “adhere to School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare”; “refrain from inappropriate communications with students”; and “refrain from inappropriate physical contact with students.”
Hearing
At the final hearing, M.G. provided persuasive credible testimony regarding the incident. He testified that he was sitting in Whitley’s chair in the hall. M.G. also admitted that he refused to move and told Respondent “no” when told to move.
Whitley testified that M.G. “jumped” out of the chair. The undersigned does not credit Whitley’s testimony based on his contradictory
statements about the incident, which diminish the trustworthiness of his testimony.1
Findings of Ultimate Fact
Accordingly, the undersigned finds that M.G.’s credible testimony established that Whitley initiated contact with M.G., grabbed the desk to lean in, and flipped M.G., who was seated, out of the desk. As a result of Whitley’s actions, M.G. landed in a manner where his “hand hit the ground,” head hit the concrete floor, and, by doing so, jeopardized M.G.’s health, safety, and welfare.
CONCLUSIONS OF LAW
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).
Petitioner is a duly-constituted district school board with the authority to suspend, dismiss, or return to annual contract, members of the instructional staff and other school employees of Miami-Dade County, Florida, pursuant to section 1012.22(1)(f), Florida Statutes.
Respondent is an employee of the school board pursuant to an annual contract.
Petitioner has the burden of proving that it has “just cause” to suspend Respondent's employment as a school security monitor.
"Just Cause" is defined to include misconduct in office and gross insubordination by section 1012.33(1)(a).
Petitioner's burden to prove the charges in the Notice of Specific Charges against Respondent must be met by a preponderance of the
1 Whitley’s testimony that M.G. jumped out of the desk is rejected because he provided contrasting versions of the incident. Whitley presented one version where M.G. got out of the chair fast, “jumped,” and did not end up on the floor and another inconsistent version where
M.G. “jumped out and then a hand hit the ground.” The combination of Whitley admitting that he unnecessarily “grabbed the desk and lean[ed] in” and also admitting that M.G.’s “hand hit the ground” supports M.G.’s version of the incident.
evidence. McNeill v. Pinellas Cty. 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).
In the Notice of Specific Charges filed against Respondent in this proceeding, the School Board charged him with violation of Florida Administrative Code Rules 6A-5.056(2) and (4), 6A-10.081, and School Board Policies 4210, 4210.01, and 4213. The School Board alleges generally that Respondent's inappropriate actions with M.G. and use of profanity toward administrators establish "just cause" for Respondent’s dismissal from employment.
Misconduct in Office
Petitioner alleges Respondent committed Misconduct in Office as Count I in the Notice of Specific Charges.
The State Board has defined the term "Misconduct in Office" by rule 6A-5.056(2), which provides, in pertinent part:
(2) “Misconduct in Office” means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida Rule 6A-10.080, F.A.C.
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.;
A violation of the adopted school board rules;
Behavior that disrupts the student’s learning environment; or
Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.
Petitioner proved that Respondent committed Misconduct in Office by violating one of the Principles of Conduct, rule 6A-10.081(2)(a)1., which
requires that Respondent “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.” Respondent’s action of grabbing the desk, leaning in, and flipping the desk while M.G. was seated are actions that directly violated rule 6A-10.081(2)(a)1. Whitley endangered M.G.’s physical health and safety and caused M.G. to fall and hit his head on the concrete floor. By Whitley violating rule 6A-10.081(2)(a)1., above, Petitioner has proven by a preponderance of the evidence that Respondent violated rule 6A-5.056(2), Misconduct in Office.
Petitioner also alleges in its Proposed Recommended Order that Respondent’s actions exposed M.G. to unnecessary embarrassment. However, the record lacks evidence of such.
School Board Policy 4210
School Board Policy 4210, Standards of Ethical Conduct, 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 support staff member shall:
A. Make a 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.
* * *
C. Not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
S. not use abusive and/or profane language or display unseemly conduct in the workplace.
Petitioner proved that Respondent violated School Board Policy 4210 by endangering M.G.’s physical health and safety by creating a harmful condition when Respondent flipped the desk M.G. was sitting in.
School Board Policy 4210.01
School Board Policy 4210.01, Code of Ethics, applies to all employees of the District and provides, in relevant part:
The fundamental principles upon which the Code of Ethics is predicated are as follows:
* * *
F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.
* * *
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.
* * *
Responsibility– thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other.
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well- being of the students and the honest performance of professional duties core guiding principles.
To obey local, State, and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his/her actions.
* * *
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the performance of job duties.
Respondent violated School Board Policy 4210.01 by not adhering to the fundamental principles. By Respondent grabbing a desk and flipping a seated student, he failed to act kindly or gently, showed lack of respect for M.G., and lacked professional responsibility in violation of the pledge and principles.
School Board Policy 4213
Petitioner also met its burden and demonstrated that Respondent violated School Board Policy 4213, Student Supervision and Welfare, which provides, in pertinent part:
Protecting the physical and emotional well-being of students is of paramount importance. Each support staff member shall maintain the highest professional, moral and ethical standards in dealing with the supervision, control, and protection of students on or off school property.
As detailed above, Respondent’s actions of grabbing the desk, flipping it while a student is seated, and causing M.G. to hit his head on a concrete
floor are an endangerment to M.G.’s well-being. Additionally, Respondent’s actions failed to protect M.G. in violation of School Board Policy 4213.
By Respondent violating School Board Policies 4210, 4210.01,
and 4213, Respondent also violates rule 6A-5.056(2)(c), Misconduct in Office.
Gross Insubordination
Respondent’s last charge in the Notice of Specific Charges is gross insubordination.
Section 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.”
Petitioner proved Respondent was disciplined twice for inappropriately touching students. Additionally, the evidence established Respondent was specifically told each time he was disciplined to “refrain from any physical touching of students” and “refrain from inappropriate physical contact with students.” Whitley’s failure to obey prior directives about inappropriate contact with students is a violation of rule 6A-5.056(4), gross insubordination.
Because Petitioner did not address, and the record is void of evidence establishing that Respondent directed profanity at M.G. and the administrators prior to the School Board meeting taking action against him, Respondent is not subject to discipline for such conduct.
As to the appropriate discipline for Respondent’s violations, the Progressive Discipline Policy set forth in Article XXI of the UTD Contract, Employee Rights and Due Process, section 1, Due Process, paragraph A.1., states, in pertinent part:
The [Miami-Dade County School] Board and Union recognize the principle of progressive discipline. The parties agree that disciplinary action may be consistent with the concept 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.
It is unfortunate that this incident took so long to go through the School Board’s procedures. However, as alleged in the Notice of Specific Charges, the School Board has established “just cause” for termination by proving Whitley committed misconduct in office and gross insubordination. The record evidence substantiates that the School Board has followed progressive discipline regarding Respondent’s two prior incidents of inappropriate contact with students, and Respondent first received a written reprimand and then a 12-day suspension as discipline. Accordingly, the seriousness of Respondent continuing to have inappropriate contact with students and the specific misconduct of grabbing the desk, leaning in, and flipping a student out of the desk onto the floor, which resulted in the student bumping his head on the concrete floor, warrants imposing termination as reasonable discipline for the offense at issue.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order:
finding Respondent in violation of rules 6A-5.056(2) and (4),
6A-10.081, and School Board Policies 4210, 4210.01, and 4213 as charged; and
upholding Respondent's termination from employment for just cause.
DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida.
S
JUNE C. MCKINNEY
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 29th day of October, 2020.
COPIES FURNISHED:
Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430
Miami, Florida 33132 (eServed)
Branden M. Vicari, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761 (eServed)
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
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)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 21, 2021 | Agency Final Order | |
| Oct. 29, 2020 | Recommended Order | School Board proved just cause to terminate Respondent's employment. |
