06-002861 Miami-Dade County School Board vs. Cynthia Thompson Status: Closed Recommended Order on Tuesday, February 27, 2007.

Summary: Petitioner failed to prove that Respondent, an education paraprofessional, struck a disabled student on the head with her elbows, and therefore is not entitled to dismiss Respondent for just cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2861

)

CYNTHIA THOMPSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on October 16, 2006, in Miami,

Florida.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Mia mi, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Carol Buxton, Esquire

Florida Education Ass ociation

140 South University Drive, Suite A

Plantation, Florida 34493

STATEMENT OF THE ISSUE

The issue in this case is whether a district school board

is entitled to dismiss a paraprofessional for just cause based

principally upon the allegation t hat she struck a disabled

student on the head with her elbows.

PRELIMINARY STATEMENT

At its regular meeting on May 10, 2006, Petitioner School

Board of Miami - Dade County suspended Respondent Cynthia Thompson

without pay pending her dismissal as a member of the district's

instructional staff. This action resulted from the allegation

that on January 6, 2006, Ms. Thompson had attacked a disabled

student, striking the child twice in the head.

Ms. Thompson timely requested a formal administrative

hearing to contest Petitioner's intended action. Thus, on

August 9, 2006, the matter was referred to the Division of

Administrative Hearings ("DOAH") for further proceedings.

Thereafter, on August 22, 2006, the School Board filed its

Notice of Specific Charges. (L ater, on September 29, 2006,

Petitioner filed an amended charging document.)

At the final hearing, which took place on October 17, 2006,

Petitioner called the following witnesses: Henny Cristobol,

Assistant Principal; John Messenger, Detective; Latanya

St ephenson, Registrar; Respondent Cynthia Thompson; Dr. Alberto

Fernandez, Principal; and Gretchen Williams, Administrative

Director, Office of Professional Standards. Petitioner's

Exhibits 3, 16, 20 - 34, and 36 - 42 were received in evidence. Ms.

Thompson, f or her part, rested on the testimony she had given

during Petitioner's case - in - chief and offered no exhibits.

The final hearing transcript was filed on November 22,

2006. Each party timely filed a Proposed Recommended Order

before the established deadl ine, which was enlarged to

December 15, 2006, at Petitioner's request.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

Background

1. The Miami - Dade County School Board ("School Board"),

Petitioner in this case, is the constitutional entity authorized

to operate, control, and supervise the Miami - Dade County Public

School System.

2. As of the final hearing, Respondent Cynthia Thompson

("Thompson") had worked in the Miami - Dade County Public School

System for approximately 16 years. From August 2002 forward,

and at all times relevant to this case, Thompson was employed as

an education paraprofessional at Neva King Cooper Education

Center, where she provided educational services to students

h aving severe developmental disabilities.

3. The alleged events giving rise to this case allegedly

occurred on January 6, 2006. The School Board alleges that on

that date, in the cafeteria at around 9:00 a.m., as a breakfast

session was winding down, Tho mpson used her elbows to strike one

of the students in her charge, a profoundly mentally

handicapped, 15 - year - old female named K. P., on the head. This

allegation is based on the account of a single eyewitness ——

Latanya Stephenson, the school's assistant r egistrar. 1

4. Thompson consistently has maintained her innocence,

denying that she hit K. P. as charged. She claims —— and

testified at hearing —— that she merely used her arms to prevent

K. P. from getting up to rummage through the garbage can in

se arch of food and things to put in her mouth.

5. This, then, is a "she said —— she said" case that boils

down to a credibility contest between Thompson and Ms.

Stephenson. If Ms. Stephenson's account is truthful and

accurate, then Thompson is guilty of at least one of the charges

against her. On the other hand, if Thompson's account is

believed, then she is not guilty of misconduct. Given that the

credibility determination drives the outcome, the undersigned

will first, as a predicate to evaluating the ev idence, set forth

the two material witness's respective accounts of the incident

in question, and then make determinations, to the extent

possible, as to what might have happened. It is important to

note, however, that the findings in the next two section s merely

report what each witness said occurred; these do not necessarily

correspond to the undersigned's findings about what likely took

place in the cafeteria at Neva King Cooper Education Center on

January 6, 2006.

Stephenson's Story

6. Ms. Stephens on recounts that on the morning in

question, while on break, she went to the cafeteria to get a

snack. She went through the line, bought a cookie, and, before

leaving the building, stopped to chat with two custodians who

were sitting in a closet that hold s supplies. As she leaned

against a wall, listening to the custodians' conversation, Ms.

Stephenson looked back into the cafeteria and, at a distance of

about 10 to 12 feet, saw Thompson interact with K. P.

7. K. P. was sitting at a table, her chair push ed in

close, hands in her lap. Thompson, whose hands were clasped in

front of her body, approached K. P. from behind and —— after

"scanning" the room —— struck her twice in the head, first with

her right elbow and then, rotating her body, with her left

elbow. Ms. Stephenson heard the blows, saw K. P.'s head move,

and heard K. P. moan.

8. Ms. Stephenson called out Thompson's name, and

Thompson, apologizing, explained that K. P. repeatedly had tried

to pick through the garbage can in search of things to eat.

Thompson told Ms. Stephenson that she would not hit K. P. again,

but that striking the student was an effective means of getting

her to stay put.

9. Ms. Stephenson did not check on K. P. to see if she

were injured or in need of assistance.

10. Accord ing to Ms. Stephenson, there were about 40 to 50

students in the cafeteria at the time, ranging in age from three

to 22 years. There were also approximately 12 to 15 members of

the instructional staff ( i.e. teachers and paraprofessionals)

present, meaning that, besides Thompson and Ms. Stephenson,

about a dozen responsible adults were on hand at the time of the

incident in dispute. Ms. Stephenson did not bring the incident

to the attention of any of the teachers or paralegals who were

in the cafeteria at the time.

Thompson's Testimony

11. Thompson was responsible for three students at

breakfast that morning. The teacher under whose supervision she

worked, Mr. Ibarra, was watching the other five students in the

class. Mr. Ibarra was on one side of the table, Thompson the

other.

12. Thompson was feeding one of her students, "R.", while

watching K. P. and a third student. R. did not want to eat, so

to coax him into opening his mouth, Thompson was playing an

"airplane game" with him, trying to make the feeding fun.

Thompson had a plastic utensil in her right hand, with which she

was fee d ing R. some applesauce (or similar food); in her left

hand was a toy.

13. At the time of the alleged incident, some students had

finished breakfast and been brought back to their classrooms.

Still, there were quite a few people in the cafeteria, 60 to 80

by Thompson's reckoning, including adults. 2

14. K. P. was sitting at the table, behind Thompson; they

had their backs to one another. Consequently, while fee d ing R.,

Thompson needed to look over her shoulder to keep an eye on K.

P. Suddenly, Thompson noticed K. P. starting to rise from her

chair. (K. P. has a history of darting to the garbage can,

grabbing food and trash, and putting these things in her mouth

to eat.) Thompson reached back with her right arm and, placing

her elbow on K. P.'s left shoulder, prevented the child from

getting up. K. P. then tried slipping out to her (K. P.'s)

right, whereupon Thompson swung around and, with her left arm,

blocked K. P.'s escape.

15. Right after this happened, Ms. Stephenson spoke to

Thompson, criticizing her handling of K. P. Thompson explained

to Ms. Stephenson (who, as an assistant registrar, does not work

directly with the children) that she simply had prevent ed K. P.

from getting into the trash can. Ms. Stephenson walked away.

Soon thereafter, Mr. Ibarra said, "Let's go." The children were

escorted back to the classroom.

Resolutions of Evidential Conflict

16. The competing accounts of what occurred are

su fficiently in conflict as to the crucial points that both

cannot simultaneously be considered fully accurate. The fact -

finder's dilemma is that either of the two material witnesses

possibly might have reported the incident faithfully to the

truth, for nei ther witness's testimony is inherently incredible,

impossible, or patently a fabrication. Having observed both

witnesses on the stand, moreover, the undersigned discerned no

telltale signs of deception in the demeanor of either witness.

In short, neither of the competing accounts can be readily

dismissed as false.

17. Of course, it is not the School Board's burden to

prove to a certainty that its allegations are true, but only

that its allegations are most likely true. As the fact - finder,

the undersign ed therefore must consider how likely it is that

the incident took place as described by the respective

witnesses.

18. In her testimony, Ms. Stephenson told of an unprovoked

battery on a defenseless disabled person. It is an arresting

story, shocking if true. Ms. Stephenson appeared to possess a

clear memory of the event, and she spoke with confidence about

it. Nothing in the evidence suggests that Ms. Stephenson had

any reason to make up the testimony she has given against

Thompson.

19. Nevertheles s, some aspects of Ms. Stephenson's

testimony give the undersigned pause. There is, to start, the

matter of the large number of persons —— including at least a

dozen responsible adults, not to mention about 50 students —— who

were on hand as potential witness es to the alleged misdeed. The

undersigned hesitates to believe that Thompson would attack a

child in plain view of so many others, particularly in the

absence of any provocation that might have caused her suddenly

to snap. 3 The cafeteria would not likel y have afforded Thompson

a favorable opportunity for hitting K. P., were she inclined to

do so.

20. Next, it puzzles the undersigned that Ms. Stephenson

did not immediately signal to someone —— anyone —— in the cafeteria

for help. The undersigned expec ts that a school employee

witnessing the beating of a disabled child under the

circumstances described by Ms. Stephenson would promptly enlist

the aid of other responsible persons nearby. Indeed, the

undersigned can think of no reason (none was given) for Ms.

Stephenson's rather tepid response to a violent, despicable

deed —— other than that it did not happen exactly the way she

described it.

21. Finally, Ms. Stephenson's incuriosity about K. P.'s

condition after the alleged beating is curious. Having, sh e

says, witnessed Thompson twice strike K. P. in the head with

enough force that the blows could be heard over the din of

dozens of children, and having heard K. P. moan, presumably in

pain, Ms. Stephenson by her own admission made no attempt to

ascertain whether the child was hurt or in need of attention.

This indifference to the welfare of the alleged victim strikes

the undersigned as inconsistent with Ms. Stephenson's testimony

that Thompson attacked the child.

22. Turning to Thompson's testimony, she, like Ms.

Stephenson, has not been shown to have a motive for lying about

the incident in question —— assuming she is innocent of the

charges, which the undersigned must do unless and until the

greater weight of the evidence proves otherwise. Thompson is,

however, a convicted felon, which is a chink in her

credibility's armor.

23. That said, there is nothing obviously discordant about

her account of the relevant events. Her testimony regarding K.

P.'s proclivity for diving into trashcans is corrobora ted by

other evidence in the record, and the undersigned accepts it as

the truth. Her testimony about the feeding of R. was not

rebutted and therefore is credited. Her explanation for having

used her arms and elbows (while her hands were full) to block K .

P. from racing to the garbage is believable. 4

24. If there is anything eyebrow - raising about Thompson's

testimony, it is that the blocking maneuver she described,

quickly twisting her body around from right to left, elbows and

arms in motion, seemin gly posed the nontrivial risk of

accidentally hitting the child, possibly in the head. One is

tempted to speculate that Thompson unintentionally might have

struck K. P. in the course of attempting to keep her from

engaging in a potentially harmful behavio r, namely eating refuse

from the garbage can. 5

25. The undersigned does not , however, think or find that

this happened, more likely than not, because of the "dog that

didn't bark" 6 —— or, more particularly, the teachers and

paraprofessionals who never sp oke up. Most likely, if Thompson

had struck K. P. in the manner that Ms. Stephenson described,

then the noise and commotion would have attracted the attention

of someone besides Ms. Stephenson. There were, after all,

approximately 12 other members of the instructional staff nearby

in the cafeteria when this alleged incident occurred. Yet, no

one in a position to have witnessed the alleged attack —— except

Ms. Stephenson —— has accused Thompson of wrongdoing, nor has

anyone come forward to corroborate the tes timony of Ms.

Stephenson. This suggests that nothing occurred which the

instructional personnel, who (unlike Ms. Stephenson) regularly

work directly with this special student population, considered

unusual or abnormal.

26. Taken as a whole, the evide nce is insufficient to

establish that, more likely than not, Thompson struck K. P. as

alleged. Based on the evidence, the undersigned believes that,

as between the two scenarios presented, the incident more likely

occurred as Thompson described it; in oth er words, relative to

Stephenson's account, Thompson's is more likely true.

27. Accordingly, the undersigned accepts and adopts, as

findings of historical fact, the statements made in paragraphs 6

and 9 - 15 above. The upshot is that the School Board f ailed to

carry its burden of establishing, by a preponderance of the

evidence, that Thompson committed a disciplinable offense.

Determinations of Ultimate Fact

28. The greater weight of the evidence fails to establish

that Thompson is guilty of the offe nse of misconduct in office.

29. The greater weight of the evidence fails to establish

that Thompson is guilty of the offense of gross insubordination.

30. The greater weight of the evidence fails to establish

that Thompson is guilty of the offense of violating the School

Board's corporal punishment policy.

31. The greater weight of the evidence fails to establish

that Thompson is guilty of the offense of unseemly conduct.

32. The greater weight of the evidence fails to establish

that Thompson is gu ilty of the offense of violating the School

Board's policy against violence in the workplace.

CONCLUSIONS OF LAW

33. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 1012.33(6)(a)2., 120.569,

and 120.57(1), Florida Statutes.

34. A district school board employee against whom a

dismissal proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

form al exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. Schoo l Board of Dade County , 426 So. 2d 1149, 1151

(Fla. 3d DCA 1983)(Jorgenson, J. concurring).

35. Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dis missal may

be predicated, and none other. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999);

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Klein v. Department of Business and Prof essional

Regulation , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967 (Fla.

5th DCA 1992); Willner v. Department of Professional Regulation,

Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

denied , 576 So. 2d 295 (1991).

36. In an administrative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each eleme nt of the charged offense(s). See

McNeill v. Pinellas County School Bd. , 678 So. 2d 476, 477 (Fla.

2d DCA 1996); Sublett v. Sumter County School Bd. , 664 So. 2d

1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau County

School Bd. , 629 So. 2d 226 (Fla. 1s t DCA 1993).

37. The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 48 9, 491

(Fla. 1st DCA 1995).

38. In its Amended Petitioner's Notice of Specific Charges

filed on September 29, 2006, the School Board advanced five

theories for dismissing Thompson: Misconduct in Office (Count

I); Gross Insubordination or Willful Neglect of Duty (Count II);

Violation of Corporal Punishment Policy (Count III); Unseemly

Conduct in Violation of School Board Policy (Count IV); and

Violation of the Violence in the Workplace Policy (Count V).

39. Each of the School Board's several counts depe nds on

the allegation that, on January 6, 2006, Thompson used her

elbows to batter a disabled student about the head. The School

Board, however, failed to prove this essential allegation by a

preponderance of the evidence. Thus, all of the charges agains t

Thompson necessarily fail, as a matter of fact. Due to this

dispositive failure of proof, it is not necessary to render

additional conclusions of law, with a few exceptions, which

follow below, relating to corporal punishment.

40. The School Board's p olicy on corporal punishment, as

set forth in School Board Rule 6Gx13 - 5D - 1.07 , is that the

practice is "strictly prohibited."

41. The Rule does not define "corporal punishment"; the

School Board relies instead on Section 1003.01(7), Florida

Statutes, whi ch provides as follows:

"Corporal punishment" means the moderate use

of physical force or physical contact by a

teacher or principal as may be necessary to

maintain discipline or to enforce school

rule. However, the term "corporal

punishment" does not inc lude the use of such

reasonable force by a teacher or principal

as may be necessary for self - protection or

to protect other students from disruptive

students.

42. It is reasonably clear from this definition, and the

undersigned concludes, that "corporal punishment" in the school

setting entails the use, as a disciplinary measure, of such

physical force or contact as reasonably would be expected to

inflict bodily pain or discomfort. The archetypal form of

corporal punishment is (or was) paddling.

43. The corollary to the foregoing is that not all

physical contact constitutes corporal punishment. For one

thing, not all physical contact is undertaken as a means of

imposing discipline. For another, not all physical contact

reasonably would be expected to cause bodily pain or discomfort.

It is concluded, therefore, that a teacher or paraprofessional

can touch a student without necessarily administering "corporal

punishment" on the student.

44. Florida law recognizes, moreover, that in some

circumstanc es a teacher or paraprofessional might be required to

use physical force or contact to protect himself or another from

danger. For example, Section 1003.32(1)(j), Florida Statutes,

authorizes each member of the instructional staff to use

"reasonable force , according to standards adopted by the State

Board of Education, to protect himself or herself or others from

injury." See also Fla. Admin. Code R. 6A - 1.0404(8)(m)

(Instructional personnel shall have the authority, "[w]hen

necessary, [to] use reasonably force to protect themselves,

students and other adults from violent acts[.]").

45. For another example, Rule 6A - 1.0404(8)(c) authorizes

the use of "reasonable efforts to protect the student from

conditions harmful to learning, mental and physical health , and

safety (paragraph (3)(a) of Rule 6B - 1.006, F.A.C.)." Indeed,

Florida Administrative Code Rule 6B - 1.006(3)(a), which is cross -

referenced in Rule 6A - 1.0404(8)(c), actually requires , as an

affirmative duty, that teachers "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."

Nothing in the Rules relating to the right and duty to make

reasonable protective efforts excludes the possibility that such

effo rts might include, when reasonable, the use of physical

force or contact.

46. All this is to say that, although Thompson physically

made contact with K. P. during the disputed occurrence, the

undersigned nevertheless determined, as a matter of ultimate

f act, that such contact —— which, viewed from an objective

standpoint, was neither administered as a disciplinary measure

nor such as reasonably would be expected to inflict bodily pain

or discomfort —— did not constitute "corporal punishment." This

ultima te factual determination was informed by the legal

conclusions set forth above.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final

order: (a) exonerating Thompson of all cha rges brought against

her in this proceeding; (b) providing that Thompson be

reinstated to the position from which she was suspended without

pay; and (c) awarding Thompson back salary, plus benefits, that

accrued during the suspension period, together with interest

thereon at the statutory rate.

DONE AND ENTERED this 22nd day of December, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 22nd day of December, 2006.

ENDNO TES

1 / The alleged victim, who has the cognitive abilities of an

infant, is nonverbal and thus unable to tell what she

experienced.

2 / At he aring, Thompson testified that there had been 30 to 40

adults in the room. Possibly, in using the term "adults,"

Thompson meant to reference the staff plus the students who had

reached the age of majority, although this seems unlikely.

Probably she missp oke or was mistaken. In any event, the

persuasive evidence establishes that there were approximately a

dozen members of the instructional staff nearby during the

alleged incident.

3 / To this can be added that there is no evidence whatsoever of

motive.

4 / The School Board contends that Thompson made inconsistent

statements about the incident during the questioning she faced

by the principal, the detective, and other administrators after

being accused of misconduct by Ms. Stephenson (whose account, in

contrast, the relevant school personnel seem to have accepted

uncritically during the investigative process). These alleged

"inconsistencies" strike the undersigned as, at worst, the sort

of immaterial linguistic variations that inevitably arise when a

st ory is told and re - told multiple times.

5 / The undersigned rejects as unpersuasive the School Board's

argument that K. P.'s fixation with food —— which drives her to

put things she finds in the trash into her mouth, including

inedible objects such as plast ic utensils —— did not pose any

danger to herself. Responsible adults do not let babies eat

refuse from the garbage can, for lots of reasons, but ultimately

because eating garbage is neither sanitary nor safe, raising at

a minimum the possibilities of infec tion and choking. For the

same reasons, the risk of harm that eating trash poses to K.

P. —— who is, cognitively, a baby —— should be apparent to any

reasonable person.

6 / The reference, which has worked its way into the popular

culture, derives from Arthu r Conan Doyle's short story "Silver

Blaze," wherein one of the clues upon which Sherlock Holmes

relies to solve the crime was the watchdog's failure to bark

when the theft was committed, suggesting that the dog recognized

the intruder.

COPIES FURNISHED :

Ana I. Segura, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Su ite 110

Clearwater, Florida 33761

Carol Buxton, Esquire

Florida Education Association

140 South University Drive, Suite A

Plantation, Florida 34493

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

J ohn L. Winn, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Aven ue, No. 912

Miami, Florida 33132 - 1394

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 th e agency that

will issue the Final Order in this case.