12-000544TTS Osceola County School Board vs. Lillian Gomez Status: Closed Recommended Order on Friday, August 17, 2012.

Summary: Respondent violated standards of professionalism, but termination is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCEOLA COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0544TTS

)

LILLIAN GOMEZ , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

May 2 and June 7 and 8, 2012, via video teleconference with sites

in Orlando and Tallahassee, Florida. The parties appeared before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Susan P. Norton, Esquire

Marc Aaron Sugerman, Esquire

Wayne L. Helsby, Esquire

Allen, Norton and Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

For Respondent: Thomas F. Egan, Esquire

Law Offices of Thomas F. Egan, P.A.

204 Park Lake Street

Orlando, Flor ida 32803

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to suspend and terminate Respondent from her contract.

PRELIMINARY STATEMENT

By letter dated January 11, 2012, Terry Andrews, the

superintendent of the School Di strict of Osceola County, Florida,

(School District), notified Respondent, Lillian Gomez

(Ms. Gomez or Respondent ), that he was suspending her employment

and recommending her dismissal from employment with Petitioner,

Osceola County School Board (School Bo ard or Petitioner). This

January 2012 letter asserted that the School Board had just cause

to discipline Ms. Gomez based on the alleged violations:

1. In October 2011, at Sunrise Elementary

School, you placed hot sauce on crayons and

Play - doh in an effor t to discipline an

autistic, nonverbal student, [or] in an

effort to modify the student ' s behavior and

keep that student from eating Play - doh and

crayons.

2. The use of hot sauce is an aversive

therapy and is likely to be uncomfortable or

hurtful to the student (who was five years

old).

3. The use of an aversive therapy must be

preapproved according to School District

policies and you obtained no approval to use

hot sauce as any type of therapy or

discipline. Moreover, under no circumstances

would any official in the School District of

Osceola County ever authorize in an IEP

[individual education plan] or a Behavior

Plan the use of hot sauce in the manner in

which you used it whereby you soaked the

crayons and Play - doh in the hot sauce and

then insisted on the child actually licking

or eating the same (initially, the student

did not eat these materials, so you made sure

that the student put these materials in his

mouth).

Ms. Gomez timely requested an administrative hearing to

contest the allegations. O n February 10, 2012, the case was

forwarded to the Division for assignment of an Administrative La w

Judge to conduct the hearing.

Pursuant to section 1012.33(6)(a)2., Florida Statutes

(2011) , 1/ the parties were entitled to proceed to final hearing

within 6 0 days after Ms. Gomez ' s request for an administrative

hearing was received. The parties jointly waived the 60 - day

hearing provision. The final hearing was scheduled for April 9,

2012. On March 15, the School Board filed a " Motion for

Protective Order a nd Request for Emergency Hearing, " and , later

that same day , Respondent ' s Response and Motion to Compel

Discovery was filed. On March 16, a telephonic hearing was held

at which time both parties moved ore tenus for a continuance.

Both written motions wer e denied, but the joint ore tenus motion

for continuance was granted. The hearing was rescheduled to

May 2. After the first day of testimony, it was determined that

two additional hearing days were necessary. The case was

continued to June 7 and complet ed on June 8, 2012.

Prior to the start of the hearing on June 7, the undersigned

addressed the then - outstanding motions. Ms. Gomez ' s M otion to

A llow T estimony by D eposition ( M otion) was held until the hearing

concluded. When Ms. Gomez rested her case, th e need for

additional deposition testimony became moot ; thus , her M otion is

denied. Ms. Gomez ' s April 26 motion to strike and for sanctions

and the School Board ' s May 3 response to motion to strike and

cross motion for sanctions are both denied.

At the fi nal hearing, the School Board presented the

testimony of Janine Jarvis, Arima Santana, Linda Schroder - King,

Claudia Duran, Tammy Cope - Otterson, Austria Medina de Luna, 2/ and

Shaun Hawkins. Additionally, the School Board called a rebuttal

witness , Cara Col ovos. Petitioner ' s Exhibits 4, 5, 7a, 3/ 9, 10,

13, 17, 18, 24 through 26, 33, and 42 4/ were admitted into

evidence. Ms. Gomez testified on her own behalf and presented

the testimony of Yokasta Cleto, Alfredo Vallejo, and Tammy Cope -

Otterson. Respondent ' s Exhibits 2, 10, 5/ 21, and 24 were admitted

into evidence.

At the conclusion of the hearing, both parties agreed to

file their p roposed r ecommended o rders (PROs) within ten days of

the filing of the transcript. The School Board filed its PRO on

July 2, 2 012. Ms. Gomez filed her PRO on July 3. Volumes I, II ,

and V of the Transcript were filed on July 5, and Volumes III and

IV of the Transcript were filed on July 6. The parties timely

filed their PROs , and each has been duly considered in the

preparation of this Recommended Order. Petitioner ' s Exhibit 42

was filed on July 23, 2012.

On July 9, 2012, Ms. Gomez filed a Motion to Strike

Petitioner ' s Proposed Recommended Order and f or Sanctions ( S trike

M otion). Four days later, the School Board filed a Respo nse to

Respondent ' s Motion to Strike Petitioner ' s Proposed Recommended

Order and f or Sanctions ( S trike R esponse). The undersigned finds

merit with the S trike M otion; however , the prayer for relief is

too severe. Therefore, the School Board ' s references t o online

articles and court cases found on pages 23 and 24 of its PRO

(including the attachments) are stricken.

FINDING S OF FACT

1. The School Board is duly constituted and charged with

the duty to operate, control , and supervise all free public

schools w ithin Osceola County , Florida. Art . IX, Fla . Const . ;

ch. 1012 , Fla. Stat . The School Board has the authority to

discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Ms. Gomez has been employed by the School Board for

about ten years. 6/ Ms. Gomez is a Florida - certified teacher. She

is certified to teach exceptional student education (ESE),

regular education (kindergarten through sixth grade), and English

as a s econd l anguage (ESL). As a member of the School Board ' s

instructional staff, Ms. Gomez ' s emp loyment contract was subject

to section 1012.33, which provides that her employment will not

be suspended or terminated except for just cause. A copy of the

teacher ' s employment contract was not offered into evidence, nor

was the applicable collective bar gaining agreement.

3. As a teacher, Ms. Gomez was required to abide by all

Florida Statutes which pertain to teachers, the Code of Ethics

and the Principles of Conduct of the Education Profession in

Florida, and the Policies and Procedures Manual of the S chool

Board. Ms. Gomez has not been previously disciplined by the

School Board. Of the School District personnel performance plan

for teacher development assessment forms introduced at hearing,

Ms. Gomez received " High Performance " ratings in all categor ies

for three consecutive school years beginning in August 2006

through the end of the school year in June 2009. 7/

4. During the 2011 - 2012 school year, Ms. Gomez was an ESE

kindergarten teacher at Sunrise Elementary School (Sunrise).

Arima Santana and Au stria Medina de Luna were the two para -

professionals assisting in Ms. Gomez ' s classroom of six or seven

ESE students.

5. Ms. Gomez demand s a lot of work from her para -

professionals because her ESE students demand a lot of direction

and attention. She use s teaching centers throughout her

classroom for writing, reading, computer activities, and math.

Each student has an individual education plan ( IEP ) with goals,

and everything is geared to help the students reach those goals.

Ms. Gomez taught the reading and math components and was

ultimately responsible for the running of the classroom.

6. Ms. Santana was first employed at Sunrise as an ESE

assistant starting with the 2011 - 2012 school year. Prior to her

Sunrise employment, she worked in an office at Fl ora Ridge

Elementary School (Flora Ridge) as an IEP assistant. In this IEP

position , she was responsible for making sure all the Flora Ridge

students ' IEPs were in order and in compliance. Although

Ms. Santana has a ten - year - old autistic child 8 / and appe ared to

have some knowledge of autism, her formal education or training

as a teacher or teacher ' s aide in ESE, specifically autism o r

otherwise, was not documented , discussed , or provided at the

hearing .

7. Ms. Santana was in charge of the writing center. She

had crayons at her work center. Additionally , she brought in

jumbo - size crayons to assist the students with their writing

skills. Ms. Santana usually had one or two students at a time,

and , when she had a higher functioning student on one side, she

would generally have a lower functioning student on the other

side. She employed the " hand - over - hand " writing technique to

help guide the students in forming their letters, which means

that she would place her hand over the student ' s hand to guide

their writing. Her attention would be focused on that student

while the other student attempted other work. There were other

crayons at other locations in the classroom.

8. Ms. Santana was an assistant to Ms. Gomez ; however , at

some point in October , she requ ested a transfer to Flora Ridge.

Ms. Santana felt uncomfortable in Ms. Gomez ' s classroom ; yet , she

did not explain to the Sunrise administration her reason for

requesting the transfer. Ms. Santana and Ms. Gomez differed on

their approaches to teaching th e ESE students.

9. Ms. de Luna was first employed at Sunrise as an

extended - day program worker for the 2010 - 2011 school year. The

following year , Ms. de Luna was hired as an ESE assistant in

Ms. Gomez ' s classroom. Ms. de Luna has a degree in civil

engin eering and maintained a Florida teaching certificate for

several years. 9 / Ms. de Luna was in charge of the computer

center. She was also responsible for transitioning the students

from one center to another and assisting the students with their

bathroom needs. She usually had two or three students at the

computer center at a time. Ms. de Luna had taught lower -

performing students in math subjects before, but her training in

ESE or autistic students was limited to a course or two offered

by the School Boa rd. Ms. de Luna and Ms. Gomez did not share the

same teaching techniques or experiences , and Ms. de Luna called

Ms. Gomez a witch because of her teaching techniques.

10. J.A. (or the student) was a non - verbal , five - year - old ,

autistic student in Ms. Gomez ' s classroom. J.A. functioned at a

lower level than the other students. J.A. was known to eat

inedible objects such as rocks, mulch, and crayons prior to

entering Ms. Gomez ' s classroom.

11 . An IEP is developed by a specific committee (comprised

of the s tudent ' s parent(s), an ESE and regular education teacher,

and related s chool d istrict service personnel) for students with

special educational needs to ensure that the child receives a

free and appropriate public education in the least restrictive

environm ent. An IEP is created to address the specific

instruction, related services, accommodations, supplemental

aides, and services that an exceptional student needs to be

successful. The School Board directs that the ESE teacher is

responsible for " drafting the IEP. "

12. J.A. ' s father 10 / was present when the IEP was written on

June 3, 2011, following J.A. ' s evaluation on March 31. There was

no mention in the IEP that J.A. had a propensity to place

inedible objects in his mouth, and , therefore , there was no goal

established for him to stop the behavior. However, both J.A. ' s

occupational therapy assessment (date of test: April 25, 2011)

and J.A. ' s psycho - educational reevaluation report (evaluation

date: March 31, 2011) reflected that J.A. " seems to need to have

something in his mouth " and " puts inedible things in his mouth. "

The report also contained some " stereotyped behaviors " that

J.A. ' s father reported to the psychologist. It was recorded that

J.A. would frequently " lick, taste or attempt to eat inedib le

objects. " 1 1 / The School Board personnel were aware of J.A. ' s

propensity to eat inedible objects ; yet , there was no plan to

modify that behavior . Several School Board personnel placed the

responsibility for addressing this issue with others involved

wi th J.A. Unfortunately , no person in authority timely took that

necessary action. Ms. Gomez was not J.A. ' s ESE teacher when the

IEP was drafted in June 2011, 1 2 / nor was she present when it was

discussed or written.

13. Linda Schroeder - King is the co - coor dinator for ESE for

the School Board. Her position involves administrative duties as

well as the supervision of the special educational services for

students throughout the district. She is familiar with the

Individuals with Disabilities Education Act (I DEA) and the School

Board ' s policies and procedures regarding ESE students and their

needs.

14. The School Board utilizes positive behavior support for

all students. The School Board does not have a document that

contains an approved aversive therapy pol icy and procedure, nor

does the School Board have someone who is responsible for

approving aversive therapies. Ms. Schroeder - King testified that

a behavior analyst would do an evaluation and would have to make

a recommendation, but that the recommendation would have to be

approved. Yet, no person was identified who could approve (or

dis approve) such a recommendation.

15. J.A. was assigned to Ms. Gomez ' s classroom and began

the 2011 - 2012 school year in August 2011. Shortly after the

school year began, Ms . Gomez, Ms. Santana, and Ms. de Luna each

noticed that J.A. put inedible objects in his mouth while in the

classroom and on the playground. J.A. participated in the

various centers around the room. 13 / It was while at the writing

center that Ms. Santana noticed that , when she turned to assist

another student, J.A. would grab crayons and put them in his

mouth. Although not done daily, J.A. would frequently grab a

crayon and chew it. Ms. Gomez or one of the para - professionals

would attempt to remove the c rayons from J.A. ' s mouth ; however ,

when an autistic child clinches his mouth shut, there is little

that can be done to open it.

16. Sometime in early October 2011, in an attempt to modify

J.A. ' s eating of inedible objects, Ms. Gomez peeled the paper

wrapp er off several jumbo - size crayons and placed them in a

disposable cup. She then poured Louisiana hot sauce over the

crayons. Ms. Gomez allowed the cup of hot sauce crayons to sit.

Then Ms. Gomez removed the hot sauce crayons, placed them on a

towel , and allowed them to dry. There was a strong odor to those

hot sauce crayons. Ms. Gomez instructed Ms. Santana to put the

hot sauce crayons in a plastic zip - lock baggie labeled with

J.A. ' s name and directions that other students were not to use

those crayons . Ms. Santana complied with this request. There

was no evidence presented that the hot sauce crayons retained any

of the hot characteristics of hot sauce other than a strong odor.

17. Although the baggie with the hot sauce crayons was

placed on the tabl e at the writing center for several days,

neither Ms. Santana nor Ms. de Luna ever saw Ms. Gomez put a hot

sauce crayon in J.A. ' s mouth. Ms. Santana saw J.A. pick up other

non - hot sauce crayons and chew or mouth them while at the wr iting

center during tha t time.

18. Play - doh was also in the classroom; however , it was

seldom if ever used. None of the classroom adults observed J.A.

grabbing, mouthing, chewing or eating any Play - doh at any time.

At approximately the same time as the hot sauce crayons were

made, Ms. Gomez also massaged hot sauce into some black Play - doh .

As directed, Ms. Santana placed the hot sauce Play - doh in a

separate plastic zip lock baggie labeled with J.A. ' s name and

directions that other students were not to use that Play - doh .

19. At the time of the alleged Play - doh event, Ms. Santana

was at the writing center while Ms. Gomez was at her desk with

J.A. Ms. Gomez made some statement and Ms. Santana turned to see

what was happening. Ms. Santana testified that Ms. Gomez placed

" a litt le piece of play - doh " or " physically put a piece " in his

mouth and that J.A. spit it out. Ms. Santana ' s testimony is

undermined by her inability to describe other details surrounding

the alleged incident. 1 4 / Ms. de Luna repeatedly testified that ,

when Ms . Gomez allegedly said " look, look, " Ms. de Luna turned

away because she did not want to watch what was happening with

J.A. Yet, she testified that she did not see J.A. spit anything

out, that he just chewed something. Her testimony contradict s

what Ms. Santana said she saw and does not support any visual

confirmation of what was or was not placed in J.A. ' s mouth.

Ms. Gomez denies she ever put Play - doh or anything in J.A. ' s

mouth. Based on the totality of the Play - doh evidence, there is

no basis in this case to credit Ms. Santana ' s testimony over that

of Ms. Gomez. Ms. Santana, while a sincere witness , was unable

to provide specific details , and her testimony is insufficient to

support a finding of guilt as to the alleged Play - doh incident.

20. Ms. Sant ana did not balk at bagging the hot sauce

crayons or Play - doh and did not confront Ms. Gomez after she

witnessed the alleged Play - doh incident. Ms. Santana did not

attempt to determine whether or not J.A. was harmed in any

fashion. While it is understood that J.A. was non - verbal, he did

have other means of communication. J.A. could point to things

and did engage in classroom activities, albeit in an

unconventional manner. J.A. did not show any reaction to the

alleged Play - doh incident. Further, as no o ne ever saw Ms. Gomez

place a hot sauce crayon in J.A. ' s mouth , and no one saw a hot

sauce crayon in his mouth, there was no reaction to see.

21. On October 14, 201 1 , several days to a week (or longer)

after the alleged Play - doh incident, Ms. de Luna and Ms. Gomez

had a conference with Cara Colovos, Sunrise ' s assistant

princip a l. The conference was allegedly about on - going issues

between the two. 1 5 / There was an airing of grievances from both

parties. Ms. de Luna gave the hot sauce bottle, the bag of ho t

sauce crayons , and the bag of hot sauce Play - doh to Ms. Colovos.

22. T here is no credible evidence that Ms. Gomez " insisted

on the child [J.A.] actually licking or eating " 16 / the hot sauce

crayons or Play - doh or that she " made sure that the student p ut

these materials [hot sauce crayons and hot sauce Play - doh ] in his

mouth . " (emphasis added). J.A. was at Ms. Santana ' s writing

center when the hot sauce crayons were present. And, although

Ms. Santana allegedly saw Ms. Gomez put Play - doh in J.A. ' s mou th,

the specific allegation was either he licked or ate the Play - doh

(which he spit out), or he put the Play - doh in his own mouth,

which he did not.

23. In this case, it is clear that placing hot sauce on

crayons and Play - doh warrants some form of discipl ine. Although

no noticeable harm came to the student or any student, the mere

creation of the material is contrary to School Board policy.

There was no credible evidence introduced that Ms. Gomez ' s

effectiveness as a teacher in the school system was impa ired.

CONCLUSIONS OF LAW

2 4 . The Division has jurisdiction over the parties and the

subject matter of this proceeding. §§ 120.569, 120.57(1), and

1012.34(3)(d), Fla. Stat.

2 5 . Terry Andrews ' letter is the only charging document in

this case. The charg ing document is the instrument by which the

School Board provides Ms. Gomez with notice of the charges

against her. 1 7 / The specific allegations set forth in that letter

(found on page two of this Order) will not be set forth again.

It is well - settled tha t a professional cannot be disciplined for

an offense that is not charged in the complaint. Trevisani v.

Fla. Dept ' t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005).

2 6 . In this proceeding, the School Board seeks to suspend

and terminate Ms. Gomez ' s emplo yment for "just cause." The

School Board bears the burden of proving the allegations in the

letter. The standard of proof is by a preponderance of the

evidence. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476,

(Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d

883 (Fla. 3d DCA 1990); see also § 120.57(1)(j), Fla. Stat.

2 7 . A "preponderance of the evidence" is the "greater

weight of the evidence," Black ' s Law Dictionary 1201 (7th ed.

1999), or evidence that more likely than not tends to p rove a

certain proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000) (relying on American Tobacco Co. v. State , 697 So. 2d

1249, 1254 (Fla. 4th DCA 1997) , quoting Bourjaily v. U .S. ,

483 U.S. 171, 175 (1987)).

2 8 . Pursuant to section 1012.33(6) (a), the School Board is

authorized to suspend or dismiss an employee:

[A] t any time during the term of the

contract for just cause as provided in

paragraph (1)(a). The district school board

must notify the employee in writing whenever

charges are made ag ainst the employee and may

suspend such person without pay; but, if the

charges are not sustained, the employee shall

be immediately reinstated, and his or her

back salary shall be paid. . . .

2 9 . Section 1012.33(1)(a) defines "just cause" to include :

[B ] ut is not limited to, the following

instances, as defined by rule of the State

Board of Education: . . . misconduct in

office, . . . .

30 . Further, Florida Administrative Code Rule 6A - 5.056 18/

provides in pertinent part:

"Just cause" means cause that i s legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued are

set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

for each such charge is hereby defined:

* * *

(2) "Misconduct in Office" means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Profe ssional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

3 1 . The letter also included an allegation that Ms. Gomez

had engaged in "misconduct in office." Although there were no

School Board p olicies submitted that control this, the defin ition

of "misconduct in office" is defined in r ule 6A - 5.056( 2 ) , and

that rule definition is instructive. "Misconduct in office" is

defined as a violation of the Code of Ethics of the Education

Profession or the Principles of Professional Conduct for the

E ducation Profession in Florida (Code of Ethics), which is so

serious as to impair the individual ' s effectiveness in the school

system.

3 2 . Florida Administrative Code Rule 6B - 1.001 provides:

(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 integrit y.

(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.

3 3 . Rule 6B - 1.006(3) provides in pertinent part:

(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 sa fety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

3 4 . The statute s and rules which provide the grounds for

the discipline of Ms. Gomez ' s employment are penal in nature;

therefore , they must be construed in favor of the employee.

Rosario v. Burke , 605 So. 2d 523, 524 (Fla. 2d DCA 1992).

3 5 . The School Board has discretion in defining what

constitutes "just cause" for taking disciplinary action against

employees, including suspension or term ination. See Dietz v. Lee

Cnty. Sch. Bd. , 647 So. 2d 217, 218 (Fla. 2d DCA (1994) (Blue, J.

concurring) . See also § 1012.23(1) (authorizing district school

boards to adopt rules governing personnel matters, except as

otherwise provided by law or the Stat e Constitution).

3 6 . The School Board did not introduce at hearing any

School Board policies, procedures or rules pertaining to the

types of discipline for teachers.

37. The School Board proved by a preponderance of the

evidence that Ms. Gomez placed hot sauce on crayons and P lay - doh

in an effort to modify the studentÓs behavior and keep that

student from eating crayons and P lay - doh. Ms. Gomez did not

exercise the best professional judgment or maintain her integrity

when she mixed hot sauce with the cray ons and or Play - doh. For

that she should b e disciplined in some fashion.

38. The School Board did not prove there was any intent

to punish the student. The School Board did not prove that

Ms. Gomez " insisted on the child [J.A.] actually licking or

eatin g the same (initially, the student [J.A.] did not eat these

materials, so you made sure that the student put these materials

in his mouth)."

3 9 . The School Board does not have a written policy against

using aversive therapy. Ms. Gomez could not obtain pr e - approval

to use aversive therapy because there was no written policy to

seek such approval, nor was there a specific individual to whom

she could make the request.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereb y

RECOMMENDED that a final order be entered by Petitioner,

Osceola County School Board: (1) finding Respondent ' s behavior

to be inappropriate; (2) upholding the suspension without pay to -

date; (3) reinstating Respondent as a classroom teacher; and

(4) pla cing her on probation for a period of not less than two

years.

DONE AND ENTERED this 1 7 th day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administr ative 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 1 7 th day of August , 2012 .

ENDNO TE S

1/ Unless otherwise noted, all statutory references are to the

Florida Statutes (2011).

2/ Juan Corredeo, a Spanish - English interpreter, was sworn in and

served as Ms. de Luna's interpreter.

3/ The School Board's Exhibit 7a only contains three ne ws

articles. Exhibit 7 was a compilation of several unrelated

documents, which were excluded from the exhibit received.

4/ Petitioner's Exhibit 42, the deposition of Ms. de Luna, was

not provided prior to the hearing. During the hearing, the

School Boa rd's counsel offered the deposition into evidence and

agreed to provide a copy of it after the hearing. Following the

issuance of an Order seeking the deposition, Exhibit 42 was

filed. Although there were five exhibits marked for

identification, none wer e attached to the deposition.

5/ Exhibit 6 is a "Draft" of J.A.'s IEP; however, it was the only

IEP furnished and was discussed as if it were the "current" IEP.

6/ Ms. Gomez was not "rehired" for one year by the School Board;

however, she worked for the Orange County School Board and

returned to the School Board the following year. Although the

School Board cited to Petitioner's Exhibit 2 when providing the

year Ms. Gomez's contract was not renewed, Petitioner's Exhibit 2

was not offered nor received into evidence.

7/ The ratings were for six different areas: organization and

discipline; planning and delivery of instruction including

technology; knowledge of subject matter; assessment of student

performance; professional responsibilities and develo pment plan;

and evaluation of instructional needs. The 2008 - 2009 assessment

form was the most recent assessment admitted into evidence.

Prior assessments used the same six areas, but the ratings were

either " E " for effective or " ER " for effective with

re commendations. Of the 18 areas, Ms. Gomez had 15 effective

ratings and three effective with recommendations.

8/ The child was placed in a regular classroom several grades

higher than kindergarten.

9 / Ms. de Luna's teaching certificate expired as she was unable

to pass the English component of the teaching certificate

examination.

10 / J.A.'s father and step - mother are J.A.'s guardians, and they

participated in the IEP process.

1 1 / Although J.A.'s psycho - educational report is hearsay, the

hearsay wa s corroborated by testimony.

1 2 / IEPs are to be reviewed no less than annually to determine

whether the goals are being achieved.

1 3 / The classroom was arranged so that the centers (writing and

computer) were each facing the same direction, but separat ed by

several feet and not specifically aligned behind one another.

Ms. Gomez's desk was also behind these two centers and off to one

side. The computer desk was in front of the writing table, such

that Ms. de Luna would have to look over her left should er to see

Ms. Santana working at the writing center, and beyond Ms. Santana

and any students seated with her to see Ms. Gomez's desk.

Ms. Santana would have to look over her left shoulder to see

Ms. Gomez at her desk.

1 4 / Ms. Santana testified: "She [Ms . Gomez] said, like, look.

Look at what I'm going to do, so I turned around and looked and

saw when she put it in his mouth, but other than that, no, I

don't recall. I can't remember ." (emphasis added). ( See volume

II, page 170, lines 3 through 6). Ms . Santana's failure to

immediately report this untoward event to the school

administration is incomprehensible.

1 5 / Respondent's Exhibit 2 is a contemporaneously written

statement by Ms. Colovos regarding the conference with

Ms. Gomez and Ms . de Luna.

1 6 / " Eating" is "the act of one that eats," and "eat" is "to take

into the mouth, chew, and swallow (food)," The American Heritage

Dictionary of the English Language 411 (1973).

1 7 / The hearing was conducted based on the January 11, 2012,

School Board l etter wherein Ms. Gomez was suspended with pay, and

there was a recommendation for her dismissal. There was an

inference that Ms. Gomez had been fired by the School Board;

however, the Division was never provided any documentation to

that effect. Counsel for Ms. Gomez filed the appropriate letter

on January 17, 2012, requesting an administrative hearing.

18/ Florida Administrative Code R ule 6B - 4.009 was transferred to

rule 6A - 5.056 in July 2012.

COPIES FURNISHED:

Thomas F. Egan, Esquire

Law Offices of Thomas F. Egan, P.A.

204 Park Lake Street

Orlando, Florida 32803

Susan P. Norton, Esquire

Marc Aaron Sugerman, Esquire

Wayne L. Helsby, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahass ee, Florida 32399 - 0400

Terry Andrews, Superintendent

Osceola County School Board

817 Bill Beck Boulevard

Kissimmee, Florida 34744

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the dat e 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.