03-003206 Miami-Dade County School Board vs. Gloria P. Scavella Status: Closed Recommended Order on Tuesday, March 30, 2004.

Summary: Respondent was subject to disciplinary penalty from inappropriate touching using corporal punishment to modify behavior.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 03 - 3206

)

GLORIA P. SCAVELLA, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 1, 2003, by vide o teleconference with the parties

appearing from Miami and Tallahassee, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Marci A. R. Rosenthal, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in this matter is whether the Respondent, Gloria

P. Scavella, should be suspended from her employment for thirty

days for just cause. The Petitioner, School Board of Miami - Dade

County, Florida, (Petitioner or Board) maintains the suspension

should be upheld.

PRELIMINARY STATEMENT

On August 20, 2003, the Petitioner took action to suspend

the Respondent for thirty days without pay for just ca use. More

specifically, the Petitioner alleged that the Respondent had

exhibited conduct unbecoming an employee and had violated the

regulation regarding corporal punishment. The Respondent timely

challenged the Board’s decision and sought a formal

admin istrative hearing in connection with the allegations. The

matter was forwarded to the Division of Administrative Hearings

for formal proceedings on September 8, 2003.

Thereafter, the case was promptly scheduled for hearing.

At the Respondent’s request th e case was continued and re -

scheduled for December 1, 2003. At the hearing, the Petitioner

presented testimony from Tracy Cabal, Isabel Siblesz, Janice

Hopton - Cobb, Julia Gilchrist, Shaquille Harris, Raynard Felder,

Kededra Middleton, Lisa Jones, and Sele na Felder Williams. The

Petitioner’s Exhibits numbered 1 through 7 were admitted into

evidence.

The Respondent testified in her own behalf and offered

testimony from the following witnesses: Carnell White; Arthur

Collins; Doretha Dennis; and Lisa Young. The Respondent’s

Exhibit 1 was admitted into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on January 15, 2004. By

order entered January 23, 2004, the parties requested and were

granted leave to ext end the time to file Proposed Recommended

Orders. The parties were directed to file same no later than

5:00 p.m., February 4, 2004. Thereafter, the parties timely

filed Proposed Recommended Orders. The proposed orders have

been fully considered in the p reparation of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is authorized by Florida law to operate

and administer the public schools within the Miami - Dade County

School District. Accordingly, all personnel decisions, such as

the matter at issue herein, fall within its operational

authority.

2. At all times material to the issues of this case, the

Respondent was an employee of the School District. The

Respondent served as a full - time paraprofessional assigned to

Skyway Elementary School. The Respondent has been so assigned

for approximately eight years. The terms and conditions of her

employment with the School District are governed by a collective

bargaining agreement between the Petitioner and the United

Teachers of Dade (UTD contract) .

3. School employees receive training annually regarding

the rules and regulations of the School District. More

specifically, staff members, including the Respondent herein,

are apprised of the School Board’s policy regarding corporal

punishment.

4. At all times material to the incident complained of in

this case, the Petitioner maintained a policy that prohibited

corporal punishment. That policy, School Board Rule 6Gx13 - 5D -

1.07 (prohibiting the use of corporal punishment), was clearly

and fully outl ined in a handbook distributed to school

employees. There is no dispute that the Respondent knew or

should have known of the policy.

5. In fact, according to records maintained at Skyway

Elementary School, the Respondent was present during the staff

meet ing when employees were reminded, among other topics, of the

policy regarding corporal punishment for the school year at

issue in this proceeding.

6. It is undisputed that the Respondent’s assignment at

Skyway Elementary was difficult. At times the Respo ndent was

charged with the responsibility of maintaining order among

numerous students, some acted disruptively. Prior to the

incident complained of, the Respondent enjoyed a reputation as

an excellent employee. She had no prior disciplinary incidents

an d had been recommended for commendations for her fine work.

7. Nevertheless, on February 27, 2003, the Respondent

struck a student in such a manner that it caused the student

embarrassment and minor physical discomfort.

8. On the date in question, the Respondent was supervising

a group of students on the “hard court” outside the school

building during the early pre - school time. Students congregate

in the area before entering the classrooms at the time

designated for school to start. It is common for p arents to

wait with their children in this area as well.

9. The incident complained of in this case occurred while

one student, R. F., played with the younger sibling of another

student who was present on the hard court waiting with the

parent. Followin g a minor exchange between the parent and

R. F., the Respondent came to the scene to ask what had

happened. The parent, who had observed the young sibling and

the student, R. F., told the Respondent that R. F. had hit the

sibling. When the Respondent wa s so advised, she turned to

R. F. and slapped him on the head. The manner of the “slap” did

not result in physical injury to R. F. Although the student

cried, the credible evident would suggest that the tears were

prompted more from embarrassment than f rom physical pain.

Later, on realizing the student had been embarrassed, the

Respondent promptly went to the student, apologized for the

incident, and believed the matter had been fully resolved. The

Respondent maintains that she did not intend to embarr ass the

student and did not strike the student as an act of corporal

punishment. The Respondent claims she “pushed” the student’s

head to get his attention so that he would refrain from

involvement with the young sibling.

10. As one might expect, word o f the incident spread among

members of the school community. Eventually the principal

learned of the incident. The principal spoke to several persons

regarding the incident including R. F., his parents, and the

Respondent.

11. Pursuant to School Distric t protocol, the principal

referred the matter to the school police for investigation. The

school police followed up with an investigation of their own and

decided to substantiate the claim that Respondent had violated

the Board’s corporal punishment polic y.

12. School employees are expected to conduct themselves in

a manner that will reflect credit on themselves and the School

District.

13. The Petitioner’s Office of Professional Standards

(OPS) conducted a conference for the record to address the

find ings substantiated by the school police’s investigation.

During that conference the Respondent was again offered an

opportunity to explain the incident that occurred on

February 27, 2003.

14. The Respondent has not offered a credible explanation

for wh y she touched the student, R. F., on the date in question.

There is undisputed evidence that there was physical contact

between the student and the Respondent. It is undisputed that

Respondent initiated that contact. It is undisputed that the

student wa s sufficiently embarrassed by that contact that he

began to cry. And it is undisputed that the Respondent knew she

had caused the student distress because she went to him and

apologized. It is immaterial whether the touching was a “tap,”

a full force “sl ap,” a “smack,” or a “pop.” It was directed

from the Respondent to the student and it was intended to get

his attention and to modify his behavior. It was an

inappropriate touching.

15. When the OPS reviewed the incident a recommendation

for a 30 - day suspension was made to the Petitioner. According

to Ms. Siblesz the Petitioner does not suspend employees for

more or less than 30 days. Presumably, if a suspension is

warranted it must be for 30 days. Presumably, if more than a

30 - day suspension is war ranted, termination is appropriate.

Thus the question becomes, what if less than a 30 - day suspension

is warranted? Apparently the Petitioner has no mechanism to

discipline an employee with less than a 30 - day suspension.

16. The Respondent is a 13 - year employee of the School

District with an excellent work history. The Respondent serves

in a difficult role and is invaluable to the teachers she

assists.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569 and 120.57, Fla. Stat. (2003).

18. The Petitioner bears the burden of proof in this case

to establish by a preponderance of the evidence the allegations

set forth in the Notice of Specific Charg es. The Respondent

acknowledges the standard of proof applicable to this case but

maintains that the Petitioner has failed to establish just cause

for the suspension sought.

19. “Just cause” is required to discipline an employee of

the School District p ursuant to the UTD contract. A

recommendation for suspension must be under - girded by “just

cause.” In this case, that “just cause” is cited as the

violation of the School Board policy prohibiting corporal

punishment. Thus, in order to establish “just ca use” the

Petitioner must establish a violation of the policy.

20. Accordingly, by a preponderance of the evidence the

Petitioner must show that the Respondent committed an act

constituting corporal punishment.

21. Section 1003.01, Florida Statutes, defines “corporal

punishment” as “physical force” or “physical contact” to

“maintain discipline.” By her admission the Respondent touched

the student, R. F., to get his attention and to redirect his

behavior. Frankly, she did get his attention and he did refrain

from further contact with the sibling. She also embarrassed

him. She also “touched” him in a manner such that the

preponderance of the evidence established the Respondent used

“corporal punishment” within the meaning of the statute.

22. Clea rly the Respondent was in a difficult situation.

She was required to maintain order on the hard court during the

pre - school hour with little assistance from others. She did not

mean to hurt the student. Moreover, she immediately apologized

to the studen t when she realized the extent of her inappropriate

behavior. The Respondent must be credited with attempting to

take responsibility for the incident.

23. Regrettably, thirteen years of valued service to the

School District must be dismissed with one la pse of judgement.

In the instant case, there is no alternative. It is concluded

that in a single moment of poor judgement, the Respondent made

inappropriate physical contact with the student in order to

control his behavior. Accordingly, there is just c ause for

discipline of this employee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law it is

RECOMMENDED that the Miami - Dade County School Board enter a

Final Order affirming the 30 - day suspension of the Respondent.

DONE AND ENTERED this 30th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March, 2004.

COPIES FURNISHED :

Merrett R. Stierheim

Interim Superintendent

Mia mi - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Marci A. R. Rosenthal, Esquire

Miami - Dade County School Board

Suite 400

1450 Northeast Second Avenue

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.