14-000687TTS Miami-Dade County School Board vs. Elvia Hernandez Status: Closed Recommended Order on Tuesday, July 22, 2014.

Summary: Petitioner failed to prove that teacher did anything more than restrain a child for a few seconds to prevent him from injuring himself during a tantrum, so no just cause for her dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 0687TTS

ELVIA HERNANDEZ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Robert E. Meale, Administrati ve Law Judge of the Division of

Administrative Hearings (DOAH), conducted the final hearing on

May 2, 2014, by videoconference in Miami and Tallahassee,

Florida .

APPEARANCES

For Petitioner: Cristina Rivera Correa, Esquire

The School Board of Miami - Dade

County, Florida

1450 Northeast Second Avenue, Suite 430

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, pursuant to

section 1012.33(1)(a), Florida Statutes (2013), Petitioner has

just cause to dismiss Respondent for the vi olations alleged in

the Notice of Specific Charges served on April 22, 2014.

PRELIMINARY STATEMENT

By Notice of Specific Charges, Petitioner alleged that

Respondent was employed under a professional service contract as

a teacher of a special education kind ergarten class. On

October 2, 2013, ** was among the special education students in

Respondent's class.

While sitting on the floor with her class as part of

instruction, Respondent allegedly held ** with one hand and, with

her other hand, struck him four times on the child's forearm and

thigh, causing the child to cry. The striking and crying

allegedly took place in view of **'s classmates.

Count I alleges that Respondent committed misconduct in

office, in violation of Florida Administrative Code

Rule 6A - 5.056(2)(c), by violating Respondent's policies.

Specifically, Respondent allegedly violated policy 3210.7, which

prohibits intentionally exposing a student to unnecessary

embarrassment or disparagement, and policy 3210.21, which

prohibits unseemly con duct in the workplace. Count II alleges

that Respondent committed misconduct in office, in violation of

rule 6A - 5.056(2)(e), by engaging in behavior that reduces the

teacher's ability to effectively perform her duties. Count I

alleges that, after the inc ident, Respondent's principal no

longer trusted Respondent to teach and supervise students.

Count II is materially the same as Count I.

Count III alleges that Respondent failed to treat all

persons with respect and make the students' well - being a core

guid ing principle, in violation of policy 3210.01.

A second Count III alleges that Respondent violated

policy 5630, which prohibits the use of corporal punishment and

limits the use of "reasonable force" to, among other things,

self - defense and the protection of persons or property.

By letter dated February 13, 2014, Petitioner's

Administrative Director advised Respondent that the school board

determined at its meeting of February 12, 2014, to suspend

Respondent without pay and initiate a dismissal proceeding. The

letter provided Respondent with 15 days within which to request a

hearing.

Respondent timely requested a hearing.

At the hearing, Petitioner called three witnesses and

offered into evidence 12 exhibits: Petitioner Exhibits 1 - 7 and

12 - 16. Respondent called one witness and offered into evidence

no exhibits. All exhibits were admitted except Petitioner

Exhibits 12 - 15, which were proffered.

The court reporter filed the T ranscript on June 13, 2014.

The parties filed proposed recommended orders on Jun e 30, 2014.

FINDING S OF FACT

1. Petitioner has employed Respondent as a teacher since

2007. Until this incident, Respondent has not previously

received any adverse employment action during her teaching

career, which has been exclusively with Petitioner.

2. Initially, Respondent worked as a first - grade general

education teacher at Liberty City Elementary School. For her

second year at Liberty City, Petitioner assigned Respondent to

teach a pre - kindergarten special education class, which contained

12 - 14 students. Four students were general education students,

and the remaining students received special education under a

variety of eligibilities. Petitioner assigned Respondent a

mentor, and Respondent later earned a certificate in special

education.

3. Respondent taught special education classes at Liberty

City for the next four school years through June 2013. The

special education program, of which Respondent was a part, was

transferred from Liberty City to Crowder Early Childhood

Diagnostic and Speci al Education Center (Crowder) for the 2013 - 14

school year.

4. ** was not among Respondent's students at the start of

the 2013 - 14 school year. About three weeks after the school year

started, ** transferred into Respondent's classroom. ** Ós

individual ed ucation plan states that its eligibilities are

Autism and Emotional/Behavioral Disorder. **'s behavior was

volatile in class, and ** would scream and throw it self onto the

floor when it did not get its way. To avoid lunchroom

disruptions, shortly after * *'s arrival, Respondent obtained the

approval of her principal to eat lunch in the classroom with **

and another student who did not tolerate the lunchroom well.

5. On October 2, 2014, 12 students were in Respondent's

class. Four students were general ed ucation students, and the

remaining students were special education students. A

paraprofessional assisted Respondent from 8:30 a.m. to 11:30 a.m.

each day, including the day in question.

6. Before lunch, Respondent was teaching reading with the

student s seated on the floor in a circle. Respondent's class

occupied a large pod, which was divided into two classrooms by

shelves, not a door. On the other side of the shelves was an

Autism Spectrum Disorder class. Respondent's side of the pod

contained smal l tables and easels, an art area, a long table, and

a puppet theater that doubled as a safe place for students

needing a time - out.

7. Relative to the front door leading to the hallway,

Respondent and her students were at the far end of the classroom,

w hich Respondent estimated to be at least 20 - 23 feet from the

door leading to the hallway. At some point, ** tried to situat e

itself next to ##, who generally kept to itself and tried to move

away from **. Respondent intervened by telling ** to sit next t o

her. ** instead threw itself down on the floor in close

proximity to the rear wall of the classroom and began flailing

about. Fearing that ** would injure itself , Respondent kneeled

beside ** and secured its hands. In a few moments, ** calmed

down, an d Respondent was able to resume instruction.

8. Given these facts as a hypothetical, the principal

testified that a teacher taking these actions would not violate

any of Petitioner's policies.

9. Following the incident, nothing appeared out of the

or dinary. As was her custom, Respondent had lunch with ** and

the other child in the classroom. After lunch, ** was removed

from the class, and Respondent was summoned to the office where

the principal, in the presence of a law enforcement officer,

informe d Respondent that she had been observed striking **.

10. Unknown to Respondent, as she was holding **'s hands

down, the secretary/treasurer of Crowder, who had been a

classroom teacher, had entered the front door of the classroom to

give Respondent some p apers that Respondent needed to sign. The

secretary/treasurer testified that, over the course of "a couple

of seconds," she saw Respondent kneeling beside **, holding it

down with her left hand, and striking it with the other hand on

its forearm and sides . With each strike, according to the

secretary/treasurer, Respondent raised her right hand to shoulder

height before striking the crying child, who was not struggling.

11. The most immediate problem with the

secretary/treasurer's version of events is her claim that she had

an unobstructed view of the incident. This claim is untrue. The

other students, who were seated in a circle at the far end of the

room, were between the secretary/treasurer and Respondent and **.

12. More importantly, the secretary/t reasurer's version of

events does not make sense given her muted reaction. Seeing a

teacher striking a passive, crying child hard four times, the

secretary/treasurer did not intervene to halt this child abuse.

Nor did she immediately return to the office to inform the

principal or call the police. Instead, by her own testimony, she

exited the classroom, proceeded to a nearby classroom where she

delivered to another teacher a paper that needed to be signed,

and returned to the front office about four minu tes after the

incident had taken place.

13. Once in the office, the secretary/treasurer still did

not immediately report the incident as she described it in her

testimony. Instead, she suggested that the principal conduct a

teachers' meeting to remind the teachers of approved methods of

discipline. When the principal asked why she should do so, the

secretary/treasurer recounted the version to which she testified.

14. The improbabilities and implausibilities in the

testimony of the secretary/treasurer preclude assigning it any

weight. The striking of any student is unequivocally prohibited

by Petitioner's policies. The striking of a very young student

with special education disabilities that would be associated with

disruptive behaviors would represen t a more egregious violation

of these policies. The actions of the secretary/treasurer after

the incident are inexplicable -- unless, at the time, she was

unsure of exactly what she had seen or knew that she had seen an

incident more in line with Respondent 's description.

15. Further undermining the testimony of the

secretary/treasurer concerning the incident, which involved four

blows of the hand swung from shoulder height, ** was examined

later on the same day and bore no marks.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the subject matter.

§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2013).

17. Petitioner may terminate or suspend a teacher for just

cause, which includes misconduct in office. § 1012.33(1)(a).

Petitioner bears the burden of proving the material allegations

by a preponderance of the evidence. See, e.g. , Dileo v. Sch. Bd.

of Dade C n ty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

18. Petitioner pleaded this case on the alternative grounds

of corporal punishment or unreasonab le force to protect a student

from injuring himself. However, Petitioner has failed to prove

either of these theories. Instead, the facts demonstrate only

that, entirely consistent with Petitioner's policies, Respondent

reasonably restrained ** during a tantrum for a few seconds to

prevent the child from injuring itself . On these facts, just

cause does not exist for taking adverse employment action against

Petitioner.

19. Section 1012.33(6)(a) provides that, if the charges are

not sustained, the schoo l board shall immediately reinstate the

teacher and pay her "back salary." It is not clear from the

record whether Respondent has been suspended without pay pending

the resolution of this case .

RECOMMENDATION

It is

RECOMMENDED that The School Board of Mia mi - Dade County,

Florida , enter a final order dismissing the Notice of Specific

Charges and, if Respondent has been suspended without pay,

reinstating her immediately with back pay.

DONE AND ENTERED this 22nd day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 22nd day of July , 2014 .

COPIES FURNISHED:

Cristina Rivera Correa, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

Mark Herdm an, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahas see, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 N ortheast Se cond Avenue , Suite 912

Miami, F lorida 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 fi led with the agency that

will issue the Final Order in this case.