08-002679 Miami-Dade County School Board vs. Robert Blanc Status: Closed Recommended Order on Tuesday, January 6, 2009.

Summary: Petitioner failed to prove that Respondent, an education paraprofessional, kicked an autistic student and struck the student with an umbrella; therefore, Petitioner is not entitled to suspend Respondent for 30 workdays without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2679

)

ROBERT BLANC, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 25, 2008, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Janeen Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether a district school board

is entitled to suspend for 30 workdays, without pay, a

paraprofessional for just cause based upon the allegation that

he kicked an autistic student and struck the student with an

umbrella.

PRELIMINARY STATEMENT

At its regular meeting on May 21, 2008, Petitioner School

Board of Miami-Dade County suspended Respondent Robert Blanc

without pay for thirty workdays. This action resulted from the

allegation that on October 12, 2007, Mr. Blanc kicked an

autistic student and struck the student with an umbrella.

Mr. Blanc timely requested a formal administrative hearing

to contest Petitioner's action. On June 5, 2008, the matter was

referred to the Division of Administrative Hearings ("DOAH") for

further proceedings. Thereafter, on June 27, 2008, the School

Board filed its Notice of Specific Charges.

At the final hearing, which took place on September 25,

2008, Petitioner called the following witnesses: Julie Ann

Rodriguez, paraprofessional; Nemy Aimable, paraprofessional;

Gilberto Bonce, Principal, South Miami Senior High School; and

Lucy Iturrey, District Director, Office of Professional

Standards. Petitioner's Exhibits 1 through 20 were received in

evidence. Mr. Blanc testified on his own behalf and called

Yvette Williams and Luis Fernandez, both of whom are teachers,

as witnesses. Respondent offered no exhibits.

The final hearing transcript was filed on December 3, 2008.

Each party timely filed a Proposed Recommended Order before the

established deadline of December 15, 2008.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 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 Robert Blanc

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

System for more than 20 years. During the 2006-07 school year,

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

therapeutic paraprofessional at South Miami Senior High School,

where he provided educational services to students with

disabilities.

3. The alleged incident giving rise to this case occurred

on Friday, October 12, 2007. The School Board alleges that on

that date, at approximately 2:30 p.m., Blanc kicked an autistic

student named C. R. in the leg, and then used his umbrella to

strike C. R. on the arm. This allegation is based on the

accusations of two purported eyewitness (hereafter,

collectively, the "Accusers")——Julie Ann Rodriguez and Nemy

Aimable——both of whom were (and as of the final hearing

continued to be) education paraprofessionals working at South

Miami Senior High School.

4. Blanc consistently has maintained his innocence,

denying that he kicked or struck C. R. as charged. Moreover, he

that he (Blanc) then used verbal commands to redirect C. R. and

get the student to sit down, thereby protecting himself and

others.

5. This case boils down to a credibility contest between

the Accusers and Blanc. If the Accusers' account is truthful

and accurate, then Blanc is guilty of at least one of the

charges against him and should be disciplined. On the other

hand, if Blanc's account is believed, then he is not guilty of

misconduct. Given that the credibility determination drives the

outcome, the undersigned will first, as a predicate to

evaluating the evidence, set forth the competing 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 unless otherwise specifically

stated, the findings in the next two sections merely report what

the respective witnesses said occurred; these do not necessarily

correspond to the undersigned's findings about what likely took

place on October 12, 2007.

The Accusers' Story

6. While the respective accounts of Ms. Rodriguez and Mr.

Aimable concerning the incident in question differ as to some

nontrivial details, they agree on the big picture. Their story

begins at about 2:30 on a Friday afternoon. The Accusers were

on "bus duty," as were other staff members, as was Blanc. Ms.

Rodriguez and Mr. Aimable were sitting next to one another on a

wall or ledge overlooking a field of grass that lay between them

and the road where a line a buses stood waiting for children to

clamber aboard.

7. This was a busy time of day, and many people were

moving about the bus loading area. Sitting on the long wall

with the Accusers were a number of other school employees——at

least 25 teachers and aides in all, maybe more, Ms. Rodriguez

recalled (and the undersigned finds). Blanc, however, was not

sitting on the wall; he was standing on the grass, among the

students.

8. Ms. Rodriguez and Mr. Aimable were engaged in

conversation, when suddenly each noticed Blanc——who was located

about 10 feet in front of them——kick C. R. on the leg and strike

the student with an umbrella across the upper body. Ms.

Rodriguez recalls that C. R. was sitting down on a ledge, near

other faculty members, when Blanc attacked. Mr. Aimable, in

contrast, remembers C. R. standing in the grass when Blanc

struck.

9. According to Ms. Rodriguez, Blanc yelled at C. R.,

threatening to "beat up" the student if C. R. ever hit Blanc

again. Mr. Aimable does not recall Blanc making such a threat,

although he vaguely remembers Blanc uttering something about not

letting C. R. get away with hitting him.

10. By their own admissions, which are accepted as

credible and found as fact, neither of the Accusers saw anything

that transpired between Blanc and C. R. before the alleged

battery.

11. The altercation upset Ms. Rodriguez, and she began to

cry. She and Mr. Aimable continued talking——but not about the

battery they had just witnessed. It is undisputed that neither

of them made any attempt to protect C. R. or other students from

Blanc; nor did they examine C. R. for injuries or offer any

assistance. 1 No one else did either. Apparently none of the

other staff members on the scene saw Blanc attack C. R., and the

Accusers (it is found, again based on undisputed evidence) did

not mention to anyone sitting near them on the wall the

remarkable event they had seen. About ten minutes later, the

Accusers rose from the wall and walked to the office, where they

would "sign out" for the day.

Blanc's Testimony

12. Blanc, who was on bus duty the afternoon of Friday,

October 12, 2007, was standing in the middle of the grassy area

near the buses, chatting with another teacher, when he felt a

sharp pain in his lower right leg. C. R. had just kicked him

hard, without warning, and was now pressing very close, invading

his personal space.

13. C. R. is a special education student who has been

diagnosed with autism. He is reportedly nonverbal. (C. R. did

not appear at the final hearing.) It is an undisputed fact that

C. R. has a history of violent and assaultive behavior: he has

injured teachers and once broke a bus driver's nose; in

addition, he hurt a student by striking her in the stomach.

Also material are the undisputed facts that C. R. is an adult-

sized male who, at the time of the incident, was 17 years old,

stood approximately six feet tall, and weighed about 200 pounds.

14. Blanc, who is blind in one eye, was taken by surprise

when C. R. attacked him. Though his hands were full——Blanc was

holding a collapsible umbrella in one hand and a coffee mug in

the other——he raised his arms to protect his face, yelled at

C. R. to sit down, and began backing C. R. toward the ledge,

where he could be seated. This approach worked. C. R. sat

down, and the situation was defused. At this point, Isidro

Alfonso, who is C. R.'s one-on-one paraprofessional, took charge

of C. R.

15. Blanc immediately reported to his supervisor, Yvette

Williams, that C. R. had kicked him. Ms. Williams was (and as

of the final hearing continued to be) a special education

teacher at South Miami Senior High School. She, too, was on bus

duty that day but had arrived on the scene after the incident

took place. Blanc told Ms. Williams that he was going home to

put ice on his ankle, which hurt. Ms. Williams saw no need to

report the incident because C. R. was known to lash out at

teachers and others. Blanc, for his part, declined to make a

formal report out of concern for Mr. Alfonso, who, he felt

certain, would be disciplined for inattentiveness if the matter

were brought to the attention of the administration.

Resolutions of Evidential Conflict

16. The competing accounts of what occurred are

sufficiently in conflict that both cannot simultaneously be

considered fully accurate. The fact-finder's dilemma is that

neither account——the Accusers' on the one hand, Blanc's on the

other——is inherently incredible, impossible, or patently a

fabrication; neither, in short, can be readily or easily

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 undersigned therefore must consider how likely it is that

the incident took place as described by the respective

witnesses.

18. In evaluating the credibility of the witnesses who

testified against Blanc, the undersigned has considered the

relationship that existed between Ms. Rodriguez and Mr. Aimable,

as well as their post-incident conduct.

19. As mentioned above, after the incident, the Accusers

walked to the office together, arriving at about 2:45 p.m. At

some point, they agreed to report what they had observed, namely

that Blanc had physically attacked a disabled student. Yet,

once the two were in the office, they decided that it was "too

busy" there——and so, rather than waiting to be seen, they left

after at most ten minutes, without telling anyone in authority

that Blanc had (at least as they understood the situation)

committed a battery on a minor.

20. This impatience seems a bit strange, given the

circumstances. The undersigned supposes that a reasonable

school employee, having witnessed an incident as serious as the

one the Accusers claim to have seen, would have been insistent

about speaking to someone in the administration about it. That

the Accusers lacked such persistence does not completely

discredit them, but it does raise doubts about their veracity.

21. Leaving the office, Ms. Rodriguez and Mr. Aimable

walked to the parking lot, got into Ms. Rodriguez's car, and

drove off the premises together, around three o'clock. This was

not unusual for them: they carpooled to work. Ms. Rodriguez

and Mr. Aimable were not, in other words, merely co-workers;

they were co-workers who spent off-duty time together.

22. The Accusers made two stops on the way home that day,

to pick up Ms. Rodriguez's children from their respective

schools. Ms. Rodriguez then dropped off Mr. Aimable at his

place. By that time, it was about 3:35 p.m.

23. At home, Mr. Aimable continued to stew about the

incident, he says, and after about an hour, around 4:30, he

called Ms. Rodriguez to ask that she pick him up and return with

him to the school to report the matter. According to Mr.

Aimable, Ms. Rodriguez assented; she arrived at his residence

around 4:50 p.m. From there, they proceeded to the school,

where they eventually found an assistant principal, Ms. Tudor.

It was now around 5:30 Friday evening, some three hours after

the alleged event.

24. Each of the Accusers prepared for Ms. Tudor a written

statement about the incident. According to Mr. Aimable, this

process took until about 6:45 p.m., at which time the Accusers

went home.

25. Later Friday night, at a homecoming dance, Ms. Tudor

notified the school's principal, Gilberto Bonce, about the

complaint made earlier against Blanc; she also let him know that

the Accusers' statements were on his desk. Mr. Bonce took no

action that night, however, nor did he do anything in reference

to alleged incident over the weekend or during the following

Monday, October 15. Curiously, in view of the possibility (if

the Accusers were believed) that one of his staff might have

committed a crime against a student, Mr. Bonce did not report

the matter to the school police until Tuesday, October 16, 2007.

26. All in all, the circumstances——especially the

following——give the undersigned reasons to discount the

Accusers' testimonies. The failure of Ms. Rodriguez and Mr.

Aimable to take any immediate action at the scene of the

incident not only is inconsistent with their claim to have seen

Blanc beat C. R., but also it ensured that there would be no

better evidence than their eyewitness accounts of a sudden and

unexpected, fast-moving event whose duration can be measured in

seconds. Had the Accusers gone to the aid of C. R., as a

reasonable, responsible adult in their position should have

done , they could have examined him for injuries. If Blanc had

given C. R. a hard kick in the leg and struck him with an

umbrella, the blows likely would have left at least a red mark

somewhere on the student's body. Mr. Aimable, for example,

could have studied such a mark or welt, not for a moment, but

long enough to form a firm, lasting impression, one less subject

to misinterpretation or distortion than the mental image left

behind after catching a fleeting glimpse of activity that

occurred unexpectedly in his field of vision, while focused on

something else. Testimony about such an injury would have been

compelling. But there was none.

27. The Accusers' decision not to report the incident

immediately because it was too "busy" in the office is

inconsistent with the gravity of the alleged misconduct. But

more than that, because Ms. Rodriguez and Mr. Aimable left the

premises together before telling anyone about what they claim

they saw, the two had ample opportunity to talk privately for a

couple of hours——plenty of time to "get their story straight."

One does not need to believe that the Accusers consciously

intended to harm Blanc to realize that their discussing the

the school on a Friday evening to make a report about it) likely

helped them reach a consensus about what had happened,

potentially corrupting their memories in the process. The

Accusers' respective accounts are not, at bottom, independent

accounts, and may, in fact, be dependent on one another. 2

Indeed, in this case, one eyewitness might have been more

persuasive than these two.

28. Finally, it is significant that, while the incident

took place in full view of more than two dozen responsible

adults, not one of them intervened——and no one (besides the

Accusers) even saw the altercation. To be sure, these facts cut

both ways: nobody saw C. R. kick Blanc or intervened to help

him either. Nevertheless, as between the competing scenarios,

it seems more likely that C. R. was the attacker, rather than

the other way around, for at least two reasons. First, C. R.

had a history of assaultive behavior whereas Blanc did not.

Second, if Blanc were inclined to hit C. R., he likely would

have refrained from doing so in broad daylight before an

audience of his peers. C. R., on the other hand, being severely

autistic and physically aggressive in nature, would not likely

have been deterred by the presence of witnesses.

29. Taken as a whole, the evidence is insufficient to

establish that, more likely than not, Blanc struck C. R. as

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

as between the two scenarios presented, the incident more likely

occurred as Blanc described it; in other words, relative to

Accusers' account, Blanc's is more likely true.

30. Accordingly, the undersigned accepts and adopts, as

findings of historical fact, the statements made in paragraphs

12 through 15 above. The upshot is that the School Board failed

to carry its burden of establishing, by a preponderance of the

evidence, that Blanc committed a disciplinable offense.

Determinations of Ultimate Fact

31. The greater weight of the evidence fails to establish

that Blanc is guilty of the offense of violating the School

Board's policy against violence and threatening behavior in the

workplace.

32. The greater weight of the evidence fails to establish

that Blanc is guilty of the offense of unseemly conduct.

33. The greater weight of the evidence fails to establish

that Blanc is guilty of violating the School Board's Code of

Ethics.

CONCLUSIONS OF LAW

34. 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.

35. A district school board employee against whom a

disciplinary 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

formal 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. School Board of Dade County , 426 So. 2d 1149, 1151

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

36. 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 dismissal may

be predicated. 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 Professional

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).

37. 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 element 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. 1st DCA 1993).

38. 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 489, 491

(Fla. 1st DCA 1995).

39. In its Notice of Specific Charges filed on June 27,

2008, the School Board advanced three theories for suspending

Blanc: Violation of the Violence in the Workplace Policy (Count

I); Unseemly Conduct in Violation of School Board Policy (Count

II); Violation of School Board Policy Establishing a Code of

Ethics (Count III).

40. Each of the School Board's several counts depends on

the allegation that, on October 12, 2007, Blanc "kicked an

autistic student and struck [the student] with an umbrella."

The School Board, however, failed to prove this essential

allegation by a preponderance of the evidence. Thus, all of the

charges against Blanc necessarily fail, as a matter of fact.

Due to this dispositive failure of proof, it is not necessary to

render additional conclusions of law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

exonerating Blanc of all charges brought against him in this

proceeding and awarding him the back pay, plus benefits if any,

which accrued while he served the previously imposed suspension

of 30 workdays.

DONE AND ENTERED this 6th day of January, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of January, 2009.

ENDNOTES

1 / Any fact identified herein as "undisputed" is hereby adopted

as a finding.

2 / To be sure, the undersigned need not find (and is not saying)

that either Ms. Rodriguez or Mr. Aimable deliberately gave false

testimony. For that matter, the undersigned is not finding that

either one's memory necessarily was distorted by talking to the

other. The point of the above discussion, rather, is to explain

why the undersigned, as fact-finder, has elected to discount the

probative value of the Accusers' account.

COPIES FURNISHED :

Janeen Richard, 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, Suite 110

Clearwater, Florida 33761

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Room 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, 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 the agency that

will issue the Final Order in this case.