09-004092TTS Miami-Dade County School Board vs. Walkyria Dolz Status: Closed Recommended Order on Friday, January 8, 2010.

Summary: The school board's evidence was insufficient to prove the allegations. Therefore, the school board should not discipline the teacher on charges based on these allegations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-4092

)

WALKYRIA DOLZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

October 23, 2009, 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 ISSUES

The first issue in this case is whether, as the district

school board alleges, a teacher called her students "tonto" or

stupid, threw books to the ground and forced students to pick

them up, and put her feet and shoes in students' faces; if these

allegations are proved to be true, than it will be necessary to

decide whether the school board has just cause to suspend the

teacher for 10 workdays, without pay.

PRELIMINARY STATEMENT

At its regular meeting on July 15, 2009, Petitioner School

Board of Miami-Dade County suspended Respondent Walkyria Dolz

without pay for 10 workdays. This action resulted from

allegations that in November 2008, Ms. Dolz had called her

students "tonto" or stupid, thrown music books to the ground and

forced students to pick them up, and put her feet and shoes in

students' faces.

Ms. Dolz timely requested a formal administrative hearing

to contest Petitioner's action. On July 31, 2009, the matter

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

for further proceedings. Thereafter, on August 21, 2009, the

School Board filed its Notice of Specific Charges.

At the final hearing, which took place on October 23, 2009,

Petitioner called the following witnesses: A. L., A. W., R. S.,

and E. S., who are students; Vivian Rodriguez-Tabio, Assistant

Principal, Riverside Elementary School; Sharon López, Principal,

Riverside Elementary School; Investigator Terri Chester; and

Joyce Castro, District Director, Office of Professional

Standards. Petitioner's Exhibits 1 through 25 were received in

evidence. Ms. Dolz testified on her own behalf and called Noemi

Artega and Sarah Powell, both of whom are teachers, as

witnesses. Respondent's Exhibits 1 through 40 were admitted

into evidence.

The final hearing transcript was filed on November 23,

2009. Each party timely filed a Proposed Recommended Order

before the established deadline of December 10, 2008.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

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 Walkyria Dolz

("Dolz") had been a teacher for more than 40 years. Having

begun her career in Cuba, Dolz emigrated in 1974 from her native

country to the United States, where she continued to teach in

New York City and Miami. An employee of the Miami-Dade County

Public School System for the preceding 15 years, Dolz worked as

a music teacher at Riverside Elementary School during the 2008-

09 school year, which is the period relevant to this case.

3. Dolz did not have a classroom of her own at Riverside.

Rather, she traveled from room to room, using a cart to

transport books and musical instruments. Dolz visited each

class to which she was assigned once per week for one hour. In

this way, in a given year, she taught hundreds of Riverside

students in grades one through five.

4. In her long career, Dolz had never been the subject of

a disciplinary proceeding until this matter began. Indeed, she

had been (and as of the hearing continued to be) a respected

member of Riverside's teaching staff. Much evidence supports

this finding, but the following statement, which was written on

May 21, 2009, by Riverside's principal, Sharon López , is

instructive:

Ms. Dolz has been under my supervision as

school principal since December 12, 2002.

She has always exhibited professional

behavior as a classroom teacher and properly

represented Riverside Elementary in all

school functions off-campus. Ms. Dolz has

met standards for classroom observations

since her employment as a music teacher at

Riverside Elementary in 1998.

The allegations [at issue here] are out of

character for Ms. Walkyria Dolz.

5. The alleged misconduct primarily giving rise to this

case allegedly occurred in November 2008, in a fifth-grade

classroom. Based on the stories of several students, the School

Board avers that Dolz: (a) attempted to kick a student in the

face; (b) waived a sandal in (or at) another student's face; (c)

dropped a book to quiet the students; and (d) called the

students "tonto," a Spanish word the School Board contends means

"stupid." Dolz consistently has denied having done any of these

things and testified to that effect at hearing.

6. The young children who testified against Dolz did not

impress the undersigned as being accurate and reliable

witnesses. The account of R. S.——who claimed that Dolz silently

had approached his desk, removed her sandal (while balancing on

one foot), and swung the footwear at his face as he sat there in

fear, all without saying a single word during the entire event,

which lasted at least three minutes (according to R. S.)——was

incredible on its face. While it is not inconceivable that Dolz

(or any teacher) could snap in the face of some provocation or

incitement, the undersigned can neither believe nor find (on

this evidence at any rate) that a veteran teacher with a clean

disciplinary record suddenly became a bizarre, zombie-like

creature for several minutes out of an otherwise ordinary

workday and wordlessly set upon a well-behaved student for no

reason.

7. Similarly implausible was A. L.'s testimony about the

foregoing alleged incident and another where Dolz supposedly

nearly kicked a student named L. J. in the face with her foot,

while standing on one leg, because L. J. was not playing his

instrument properly. A. L.'s testimony in this regard is

rejected not only because Dolz, 67, appeared to be physically

incapable of kickboxing a child, but also because the

undersigned is skeptical that a teacher who has taught for

decades without incident——and who has always behaved

professionally except, allegedly, in this one instance——would

lose control of herself to such a degree merely because of a

student's poor musical performance. 1

8. A third student, A. W., testified that Dolz hit R. S.

and L. J. on their arms. The School Board itself did not accept

this testimony as credible, and neither does the undersigned.

A. W.'s lack of credibility on this significant matter

undermined his credibility in general.

9. On balance, Dolz was a more credible witness than

R. S., A. L., or A. W. The undersigned accepts her denial of

wrongdoing as truthful and finds that, more likely than not,

Dolz did not attempt to kick or strike any student.

10. The remaining charges are much less serious. Several

children testified that, when the students were talkative or

inattentive, Dolz threw a textbook on the floor or a table to

make a loud noise, which would get the class's attention. Dolz

denies ever having done this. The undersigned finds that the

evidence is insufficient to prove that Dolz used a textbook to

threaten, embarrass, or humiliate a student, or otherwise in a

manner that was objectively unseemly, untoward, or unreasonable

under the circumstances.

11. Some children testified that Dolz referred to her

students as "tonto," an allegation which she denies. There is

conflicting evidence concerning the meaning of the word "tonto"

in Spanish. While the word can mean "stupid," as the School

Board maintains, it also means "silly," as Dolz points out, and,

depending on the context, can be used to suggest that someone is

acting like a clown or fooling around. Based solely on the

evidence presented, the undersigned cannot find that the Spanish

term "tonto" is insulting per se , and the absence of any proof

regarding the context in which Dolz allegedly uttered the word

precludes a finding that she used it in a hurtful manner, if she

used it at all.

Determinations of Ultimate Fact

12. The greater weight of the evidence fails to establish

that Dolz is guilty of the offense of misconduct in office as

defined in Florida Administrative Code Rule 6B-4.009(3). 2

13. The greater weight of the evidence fails to establish

that Dolz is guilty of the offense of unseemly conduct, which is

prohibited under School Board Rule 6Gx13-4A-1.21 . 3

14. The greater weight of the evidence fails to establish

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

Ethics, which is set forth in School Board Rule 6Gx13-4A-1.213 . 4

CONCLUSIONS OF LAW

15. 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(2009).

16. 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).

17. 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 (Fla. 1991).

18. 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).

19. 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).

20. In its Notice of Specific Charges filed on August 21,

2009, the School Board advanced three theories for suspending

Dolz: Misconduct in Office (Count I); Unseemly Conduct in

Violation of School Board Policy (Count II); Violation of School

Board Policy Establishing a Code of Ethics (Count III).

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

allegations that, in November 2008, Dolz "call[ed] her students

"tonto" or stupid, threw music books to the ground and forced

students to pick them up, and put her feet and shoes in the

students' faces." The School Board, however, failed to prove

these essential allegations by a preponderance of the evidence.

Thus, all of the charges against Dolz 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 Dolz of all charges brought against her in this

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

which accrued while she served the previously imposed suspension

of 10 workdays.

DONE AND ENTERED this 8th day of January, 2010, 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 8th day of January, 2010.

ENDNOTES

1 / To be sure, the School Board was not required to prove, as an

element of its case, a motive for Dolz's alleged misbehavior.

But given that Dolz, a respected teacher of many years' service,

has been accused by a few young children (out of the hundreds

she teaches each year) of engaging in physically aggressive

behavior one day in the classroom, which accusation Dolz flatly

denies, and given as well that the alleged misbehavior is out of

character for Dolz, some persuasive evidence concerning why Dolz

allegedly lashed out might have added weight to A. L.'s

testimony. The absence of such evidence, while not necessarily

fatal to the School Board's case, makes A. L.'s testimony harder

to believe.

2 / Florida Administrative Code Rule 6B-4.009, which prescribes

the "criteria for suspension and dismissal of instructional

personnel," provides, in pertinent part, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

The Code of Ethics of the Education Profession (adopted in

Florida Administrative Code Rule 6B-1.001) and the Principles of

Professional Conduct for the Education Profession in Florida

(adopted in Florida Administrative Code Rule 6B-1.006), which

are incorporated in the definition of "misconduct in office,"

provide in pertinent part as follows:

6B-1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall 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.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

3 / School Board Rule 6Gx13- 4A-1.21 , which provides as follows:

All persons employed by the School Board of

Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

4 / Like Fla. Admin. Code R. 6B-1.006(3), School Board Rule

6Gx13- 4A-1.213 requires that a teacher "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" and prohibits a teacher from "intentionally expos[ing] a

student to unnecessary embarrassment or disparagement."

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.