13-001890 Miami-Dade County School Board vs. Arthurine Brown Status: Closed Recommended Order on Monday, September 30, 2013.

Summary: Paraprofessional should be terminated for slapping a student and for using profane, derogatory language.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1890

ARTHURINE BROWN ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Tallahassee and

Miami, Florida, on July 25, 2013, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Sara Marken, Esquire

Heather L. Ward, Esquire

Miami - Dade County Public Schools

1 450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Branden M. Vicari, Esquire

Herdman and Sakellarides, PA

29605 US Highway 19 , North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Arthurine Brown (Respondent) committed the acts

alleged in the Notice of Specific Charges filed by the Miami - Dade

School Board (the School Board) on July 3, 2013, and whether the

School Board has good cause t o terminate Respondent's employment

as a paraprofessional.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Respondent was

employed by the School Board as a paraprofessional at North Miami

Senior High School (NMSHS), a public school in Miami - Dade County.

Respondent's assigned duties were in a special education

classroom.

At its regularly scheduled meeting on May 8, 2013, the

School Board took action to suspend Respondent's employment

without pay and institute proceedings to terminate her

e mployment. Respondent timely challenged the School Board's

action, the matter was referred to DOAH, and this proceeding

followed.

The School Board filed its Notice of Specific Charges on

July 3, 2013, in which it made factual allegations relating to

R espondent's use of profanity and her conduct towards a student.

Based on those factual allegations, the School Board charged in

five separate counts that Respondent was guilty of (1) Misconduct

in Office; (2) Violation of School Board policy 4210, Standar ds

of Ethical Conduct; (3) Violation of School Board policy 4120.01,

Code of Ethics; (4) Violation of School Board policy 4213,

Student Supervision and Welfare; and (5) Violation of School

Board policy 5630, Corporal Punishment and Use of Reasonable

Force.

At the final hearing, the School Board presented the

testimony of Dorothy Roberts (teacher), Frantzso Brice

(paraprofessional), Michael Lewis (principal), and Joyce Castro

(district director). The School Board entered into evidence

pre - marked Exhibits 1 Î 5 and 19. Respondent testified on her own

behalf and presented the additional testimony of Darryel Bethune

(teacher) and Larry Eason (paraprofessional).

A Transcript of the proceedings, consisting of one volume,

was filed on August 18, 2013. The parties timely filed proposed

recommended orders, which have been duly considered by the

undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2012), and all refe rences to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDING S OF FACT

1. At all times material hereto, the School Board has been

the constitutional entity authorized to operate, control, and

supervise the public schools in Miami - Dade County, Florida.

NMSHS is a public school in Miami - Dade County, Florida.

2. During the 2012 - 2013 school year, the School Board

employed Respondent as a paraprofessional pursuant to a

professional service contract. The School Board assigned

Respondent to a self - contained, special education classroom at

NMSHS taught by Dorothy Roberts. Respondent has worked at NMSHS

as a paraprofessional since 2004.

3. During the 2012 - 2013 school year , paraprofessionals

Frantzso Brice and Larry Eason were also assigned to Ms. Roberts'

classroom.

4. Ms. Roberts' class consisted of 13 special needs

children with varying exceptionalities. The vast majority of

Ms. Roberts' class was of Haitian descent.

5. Ms. Roberts' students included P.P.C. (the Student), a

non - verbal child on the autism spectrum. The Student is a

14 - year - old male who functions at the level of a two or

three - year - old child.

6. On January 17, 2013, Ms. Roberts, Mr. Brice, and

Respondent were in the proce ss of escorting children into the

classroom for the beginning of the school day when an incident

involving Respondent and the Student occurred. Ms. Roberts,

Mr. Brice, and Respondent were in the classroom when the incident

occurred. Mr. Eason was not in the classroom when the incident

occurred.

7. After the Student entered the classroom at approximately

7:15 a.m., he picked up Respondent's purse from a table and went

towards a window. What happened next is in dispute.

8. The greater weight of the credible evidence established

that Respondent cornered the Student, grabbed him by the throat

with her left hand, and slapped him in the face using the palm of

her right hand. Ms. Roberts heard the sound of the slap.

Ms. Roberts and Mr. Brice described the slap as being very hard.

Ms. Roberts heard Respondent warn against "touching her fucking

shit." Mr. Brice heard Respondent warn against "touching her

fucking stuff." 1 /

9. Immediately after the incident, the Student had tears in

his eyes, but his fa ce had no observable bruising or swelling.

10. Ms. Roberts immediately reported her version of the

incident to Michael Lewis, the principal of NMSHS.

11 . After talking to Ms. Roberts, Mr. Lewis interviewed

Respondent in Ms. Roberts' classroom, without Ms. Roberts being

present . Mr. Lewis removed Respondent from the classroom , and

instigated an investigation that culminated in this proceeding.

12 . Respondent had no justification for striking the

Student.

1 3 . During the 2012 - 2013 school year, Respon dent repeatedly

used profanity in front of students and co - workers. Ms. Roberts

repeatedly told Respondent to stop using profanity, but

Respondent did not heed that instruction.

14 . During the 2012 - 2013 school year, Respondent repeatedly

made derogator y remarks about Haitians. Respondent stated that

she was tired of working with "fucking" Haitians and declared

that Haitians were dumb, stupid, and should go home.

15 . Mr. Brice, who is Haitian, felt disrespected by

Respondent's disparaging statements.

16 . At its regularly scheduled meeting on May 8, 2013, the

School Board suspended Respondent's employment and instituted

these proceedings to terminate her employment.

CONCLUSIONS OF LAW

17 . DOAH has jurisdiction over the subject matter of and

the p arties to this case pursuant to sections 120.569 and

120.57(1) , Florida Statutes .

18 . Respondent is an "educational support employee" within

the meaning of section 1012.40 , Florida Statutes . Section

1012.40(2)(c) pertains to educational support employees and

provides as follows:

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice and

shall have the opportunity to formally appeal

the termination. The appeals process shall

be determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

19 . Because the School Board seeks to terminate

Respondent's employment, which does not involve the loss of a

license or certification, the School Board has the burden of

proving the allegations in its Notice of Specific Charges by a

preponderance of the evidence, as opposed to the more st ringent

standard of clear and convincing evidence. See McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen

v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d

DCA 1990).

20 . The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Ly ons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) ,

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

21 . This is a de novo proceeding designed to formulate

final agency action. See Hamilton Cnty . Bd. of Cnty . Comm'rs v.

Dep't Envtl. Reg. , 587 So. 2d 1378 (Fla. 1st DCA 1991) , and

section 120.57(1)(k).

THE ALLEGED VIOLATIONS

22 . Article XXI(3)(D) of the collective bargaining

agreement between the School Board and the teacher's union

provides that just cause for the termination of educational

support personnel includes misconduct in office.

23 . The Notice of Specific Charges alleged that Respondent

was guilty of the following : (Count 1) Misconduct in Office;

(Count 2) Violation of School Board policy 4210, Standards of

Ethical Conduct; (Count 3) Violation of School Board policy

4120.01, Code of Ethics; (Count 4) Violation of School Board

policy 4213, Student Supervision and We lfare; and (Count 5)

Violation of School Board policy 5630, Corporal Punishment and

Use of Reasonable Force.

COUNT 1: MISCONDUCT IN OFFICE

24 . Florida Administrative Code Rule 6A - 5.056(2) defines

the term "Misconduct in Office," in relevant part, as fol lows:

(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 6A - 10.080];

(b) A violation of the Principles of

Professional Conduct for the E ducation

Profession in Florida as adopted in

[rule 6A - 10.081];

(c) A violation of the adopted school

board rules; . . . .

25 . Florida Administrative Code Rule 6A - 10.080 sets forth

the following as the 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 th e 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.

26 . Rule 6A - 10.081 set s forth the "Principles of

Professional Conduct for the Education Profession in Florida,"

and provide s , in relevant part, as follows:

(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. . . .

27 . Petitioner proved that Respondent was guilty of

misconduct in office by striking the Student and by repeatedly

making profane, derogator y statements.

COUNT 2: VIOLATION OF POLICY 4210

28 . School Board policy 4210 was admitted into evidence as

Petitioner's Exhibit 2. The policy requires that a school

support staff member shall "make a reasonable effort to protect

the student from condi tions harmful to learning and/or to the

student's mental and/or physical health and/or safety."

Petitioner proved that Respondent violated policy 4210 by

striking the Student and making profane, disparaging comments

about Haitians.

COUNT 3: VIOLATION O F POLICY 4120.01

29 . School Board policy 4120.01, the School Board's Code of

Ethics, was admitted into evidence as Petitioner's Exhibit 3.

The policy requires that School Board employees adhere to certain

ethical conduct, reiterates the requirement that each employee

"make reasonable efforts to protect the student from conditions

harmful to learning and/or to the student's mental and/or

physical health and/or safety." Petitioner proved that

Respondent violated policy 4210.01 by striking the Student and

m aking profane, disparaging comments about Haitians.

COUNT 4: VIOLATION OF POLICY 4213

30 . School Board policy 4213, which pertains to "Student

Supervision and Welfare," was admitted into evidence as

Petitioner's E xhibit 4. The policy requires that "[e]ach support

staff member shall maintain the highest professional, moral, and

ethical standards in dealing with the supervision, control, and

protection of students on or off school property." Petitioner

proved that Respondent violated policy 4213 by s triking the

Student and by repeatedly making profane, disparaging comments

about Haitians.

COUNT 5: VIOLATION OF POLICY 5630

31 . School Board policy 5630, which pertains to "Corporal

Punishment and Use of Reasonable Force," was admitted into

evidence as Petitioner's Exhibit 5. That policy prohibits the

use of corporal punishment, but authorizes the use of reasonable

force in circumstances inapplicable to this proceeding.

Petitioner proved that Respondent violated policy 5630 by

grabbing the Student and striking him.

32 . Pursuant to rule 6A - 5.056(2)(c), t he violation of the

foregoing School Board p olicies constitutes misconduct in office.

RECOMMENDATION

B ased on the foregoing findings of fact and conclusions of

law:

It is RECOMMENDED that the School Bo ard of Miami - Dade

County, Florida, enter a final order adopting the findings of

fact and conclusions of law set forth in this Recommended Order.

It is FURTHER RECOMMENDED that the final order uphold the

suspension without pay of employment of Arthurine Br own and

terminates that employment.

DONE AND ENTERED this 3 0th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative 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 3 0th day of September, 2013.

ENDNOTE

1/ In making these findings, the undersigned has carefully

considered Respondent ' s testimony. Respondent testified that she

" grabbed " the Student ' s shoulder with her right hand and

retrieved her purse with her left hand. Respondent denied

grabbing the Student by the neck or slapping him. Respondent

also denied making either statement attributed to her, and denied

using profanity on a regular basis. The undersigned is persuaded

by the clear, credible testimony of Ms. Roberts, which is the

primary basis for th e findings. Ms. Roberts testified without

hesitation or doubt (except that she incorrectly testified that

Respondent struck the Student on the right side of the face, when

it was the left ) . Ms. Roberts was in position to observe the

incident , and she had no apparent motivation to lie about what

she had seen or heard. The undersigned has also considered the

testimony of Mr. Brice, which is consistent with that of Ms.

Roberts . In evaluating Mr. BriceÓs testimony, the undersigned

has considered that Mr. Ea son testified that when he came into

the classroom on the morning of the incident, Mr. Brice told him

(Mr. Eason) that Ms. Roberts had gone to the principal ' s office,

but that he would not have done so because he (Mr. Brice) had not

seen Respondent slap th e student. Mr. Brice denied making the

statement attributed to him by Mr. Eason.

COPIES FURNISHED:

Heather L. Ward, Esquire

Sara Marken, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue

Miami, Florida 33132

Branden M. Vicari, Esquire

Herdman and Sakellarides, P . A .

29605 US Highway 19 , North

Clearwater, Florida 33761

Pam Stewart , Commissioner of Education

Department of Education

Suite 1514

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Suite 1244

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

Suite 912

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

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.