14-003006TTS Miami-Dade County School Board vs. Sharon V. Eaddy Status: Closed Recommended Order on Thursday, January 15, 2015.

Summary: Paraprofessional's employment should be terminated for forcefully grabbing a four-year-old special needs child and striking the child on the child's shoulder.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 3006TTS

SHARON V. EADDY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Tallahassee and Miami,

Florida, on October 9, 2014, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Sar a M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761 - 1538

STATEMENT OF THE ISSUE S

Whether Sharon V. Eaddy (Respondent) committed the acts

alleged in the Notice of Specifi c Charges filed by the Miami - Dade

County School Board (the School Board) on August 29, 2014, and

whether the School Board has good cause to terminate RespondentÓs

employment as a paraprofessional.

PRELIMINARY STATEMENT

At the times relevant to this proceed ing, Respondent was

employed by the School Board as a paraprofessional at Campbell

Drive K - 8 Center (Campbell Drive Center), a public school in

Miami - Dade County. Respondent's assigned duties were in a

special education pre - K classroom.

At its regularly scheduled meeting on June 18, 2014, the

School Board took action to suspend Respondent's employment

without pay and institute proceedings to terminate her

employment. 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

August 29, 2014, in which the School Board made factual

allegations relating to Respondent's conduct towards a four - year -

old male in her Exceptional Student Educat ion class. Based on

those factual allegations, Petitioner charged in four separate

counts that Respondent was guilty of (1) Misconduct in Office,

(2) Violation of School Board Policy 4210 Î Standards of Ethical

Conduct, (3) Violation of School Board Policy 4120.01 Î Code of

Ethics, and (4) Violation of School Board Policy 4213 Î Student

Supervision and Welfare.

At the final hearing, Petitioner presented the testimony of

Yamile Aponte (parent volunteer), Grisel Gutierrez (Spanish

teacher), and Carmen Gutierrez (School BoardÓs director of Office

of Professional Standards). Carmen Gutierrez was also called by

Petitioner as a rebuttal witness. Petitioner offered four

sequentially - numbered exhibits, each of which was admitted into

evidence. PetitionerÓs Exhibit 4 was filed post - hearing.

Respondent presented the testimony of Barbara A. Jackson

(first grade teacher at Campbell Drive Center), the mother of

student L.H., Pascale Vilaire (pre - K ESE teacher at Campbell

Drive Center), Rounett Green (security guard at C ampbell Drive

Center), and Joan Zaret (an ESE teacher at Campbell Drive

Center). Respondent offered one exhibit, which was admitted into

evidence. That exhibit was filed post - hearing.

A Transcript of the proceedings, consisting of one volume,

was fil ed on November 24, 2014. On the School BoardÓs unopposed

motion, the deadline for filing proposed recommended orders was

extended to December 15, 2014. Thereafter, the parties timely

filed proposed recommended orders, which have been duly

considered by t he undersigned in the preparation of this

Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2013), and all references to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDIN G 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.

Campbell Drive Center is a public school in Miami - Dade County,

Florida.

2. During the 2013 - 2014 school year, the School Board

employed Respondent as a paraprofessional pursuant to a

professional service contract.

3. At all times material hereto, RespondentÓs employment

was governed by the collective bargaining ag reement between the

School Board and the United Teachers of Dade, the rules and

regulations of the School Board, and Florida law.

4. The School Board assigned Respondent to a Pre - K special

education classroom at Campbell Drive Center taught by Pascale

V ilaire. Respondent has worked at Campbell Drive Center as a

paraprofessional for 13 years.

5. During the 2013 - 2014 school year , 14 special needs

students were assigned to Ms. VilaireÓs classroom. Those

students were between three and five years of age .

6. L.H., a four - year - old boy who was described as being

high functioning on the autism spectrum, was one of Ms. Vilair eÓs

students. L.H. had frequent temper tantrums during the 2013 - 2014

school year. Prior to the conduct at issue in this matter,

Respo ndent had had no difficulty managing L.H.Ós behavior.

7. There was a conflict in the evidence as to the date the

conduct at issue occurred. The undersigned finds that the

conduct occurred April 9, 2014, based on the Incident Information

admitted into evi dence as PetitionerÓs Exhibit 4, on the

testimony of Yamile Aponte, and on the testimony of Grisel

Gutierrez. 1/

8. Ms. Aponte had a daughter in Ms. Vilair eÓs class and

often served as a parent - volunteer.

9. Ms. Aponte was at Campbell Drive CenterÓs caf eteria on

the morning of April 9, 2014.

10. Present in the cafeteria were Ms. Vilaire, Respondent,

some of Ms. VilaireÓs class (including L.H.) and students from

other classes.

11. When Ms. Aponte entered the cafeteria, L.H. was crying

and hanging on to a trash bin. Ms. Vilaire was attending to

another student. Respondent was trying to deal with L.H. to

prevent him from tipping over the trash bin. Respondent led L.H.

by the wrist back to a table where they sat together. Ms. Aponte

approached them and offered L.H. a milk product referred to as a

Pediasure. Because L.H. was allergic to milk, Respondent told

Ms. Aponte that L.H. could not have the product.

12. When Ms. Vilaire lined up her class to leave the

cafeteria, L.H. threw a tantrum because he was still hungry.

Ms. Aponte testified that Respondent grabbed L.H. by the wrist

and pulled him up. Ms. Vilaire observed the entire interaction

between L.H. and Respondent in the cafeteria. Ms. Vilaire did

not witness anything she thought was inappropr iate or cause d her

concern.

13. Petitioner failed to establish that Respondent became

physically aggressive toward L.H. in the cafeteria by dragging

him across the floor or otherwise grabbing him inappropriately.

Paragraph nine of the Notice of Specifi c Charges contains the

allegation that while in the cafeteria, ÐRespondent forcefully

grabbed L.H. and dragged him across the floor.Ñ Petitioner did

not prove those alleged facts.

14. After the class finished in the cafeteria, the students

lined up to g o back to the classroom. Ms. Vilaire was at the

front of the line, and Respondent was ten to fifteen feet behind

at the end of the line with L.H. Ms. Aponte was part of the

group going from the cafeteria to the classroom.

15. During the walk back to the classroom, Ms. Vilaire did

not see or hear anything between Respondent and L.H. she thought

was inappropriate. She did not hear anything that diverted her

attention to Respondent and L.H.

16. At the time of the conduct at issue, Barbara Jackson,

an expe rienced teacher, taught first grade at Campbell Drive

Center. While Ms. VilaireÓs class was walking from the cafeteria

to the classroom, Ms. Jackson had a brief conversation with

Respondent about getting food for her class from McDonaldÓs.

Ms. Jackson d id not hear or see anything inappropriate between

Respondent and L.H.

17. After stopping to talk with Ms. Jackson, Respondent

resumed walking to Ms. VilaireÓs classroom. L.H. continued to

cry and attempted to pull away from Respondent. L.H. wanted to

be the leader of the line, a position that is rotated among the

class members.

18. Ms. Vilaire led the other class members into the

classroom while Ms. Aponte, Respondent, and L.H. were still

outside. While still outside, they saw Grisel Gutierrez, a

tea cher at Campbell Drive Center. L.H. began to throw himself on

the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez

saw Respondent grab L.H. forcefully by the arm and hit him on his

shoulder with a slapping sound. 2/

19. After Respondent retu rned L.H. to the classroom, L.H.

tried to push over a bookcase containing books and toys. To

prevent L.H. from pushing over the bookcase, Respondent grabbed

L.H. by his hands and held them behind his back.

Ms. Vilaire witnessed the interaction between R espondent and L.H.

in the classroom and thought Respondent acted appropriately.

Petitioner failed to establish that Respondent acted

inappropriately towards L.H. while in the classroom.

20. Ms. Aponte reported what she had seen to the school

principal th e day of the incident.

21. Respondent learned that Ms. Aponte had complained

against her the day of the incident.

22. After school the day of the incident, Respondent

angrily confronted Ms. Aponte and asked her why she had lied.

Rounett Green, a securit y guard at Campbell Drive Center , stepped

in to end the confrontation between Respondent and Ms. Aponte.

There was no evidence that Respondent attempted to threaten

Ms. Aponte. Respondent did not use inappropriate language

towards Ms. Aponte. Responden t did not make physical contact

with Ms. Aponte.

23. L.H.Ós mother heard about the alleged interactions

between Respondent and L.H. When L.H. returned home after

school, the mother examined L.H. and found no bruises or other

unusual marks on L.H.Ós bod y.

24. At its regularly scheduled meeting on June 18, 2014,

the School Board suspended RespondentÓs employment and instituted

these proceedings to terminate her employment.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the subject matter of and

t he parties to this case pursuant to sections 120.569 and

120.57(1) , Florida Statutes (2013) .

26. Respondent is an Ðeducational support employeeÑ within

the meaning of section 1012.40 , Florida Statutes (2013) .

Section 1012.40(2)(c) pertains to educationa l 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 h ave 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.

27. 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 opp osed to the more stringent

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).

28. The preponderance of the evide nce standard requires

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

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

than notÑ tends to prove a certain propositio n. See Gross v.

Lyons , 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)).

29. This is a de novo proceeding designed to for mulate

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) , Fla. Stat .

THE ALLEGED VIOLATIONS

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

agreement betwe en the School Board and the teacherÓs union

provides that just cause for the termination of educational

support personnel includes misconduct in office.

31. The Notice of Specific Charges alleged that Respondent

was guilty of the following: (Count 1) Mis conduct in Office,

(Count 2) Violat ion of School Board Policy 4210 Î Standards of

Ethical Conduct, (Count 3) Violation of School Board

Policy 4120.01 Î Code of Ethics, and (Coun t 4) Violation of School

Board Policy 4213 Î Student Supervision and Welfare.

COU NT 1: MISCONDUCT IN OFFICE

32. Florida Administrative Code Rul e 6A - 5.056(2) defines

the term ÐMisconduct in Office,Ñ in relevant part, as follows:

(2) Ð Misconduct in OfficeÑ 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 Education

Profession in Florida as adopted in

[rule 6A - 10.081];

(c) A violation of the adopted school

board r ules; . . .

33. 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

knowled ge, 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 educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 oneÓs

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.

34. Rule 6A - 10.081 set s forth the Ð Principles of

Professional Conduct for t he Education Profession in Florida, Ñ

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 studentÓs mental

and/or physical health and/or safety.

35. Petitioner proved that Respondent was guilty of

misconduct in office by proving that Respondent forcefully

grabbed L.H. and struck him on the shoulder.

COUNT 2: VIOLATION OF POLICY 4210

36. School Board P olicy 4210 was admitted into evidence a s

PetitionerÓs Exhibit 2. The p olicy requires that a school

support staff member shall Ðmake a reasonable effort to protect

the student from conditions harmful to learning and/or to the

studentÓs ment al and/or physical health and/or safety.Ñ

Petitioner p roved that Respondent violated P olicy 4210 by proving

that Respondent forcefully grabbed L.H. and struck him on his

shoulder.

COUNT 3: VIOLATION OF POLICY 4120.01

37. School Board P olicy 4120. 01, the School BoardÓs Code of

Ethics, was admitted into evidence as PetitionerÓs E xhibit 3.

The policy requires that School Board employees adhere to certain

ethical conduct , and reiterates the requirement that each

employee Ðmake reasonable efforts to p rotect the student from

conditions harmful to learning and/or to the studentÓs mental

and/or physical health and/or safety.Ñ Petitioner p roved that

Respondent violated P olicy 4 1 2 0.01 by proving that Respondent

forcefully grabbed L.H. and struck him on his shoulder.

COUNT 4: VIOLATION OF POLICY 4213

38. School Board P olicy 4213, which pertains to ÐStudent

Supervision and Welfare,Ñ was admitted into evidence as

PetitionerÓs E xhibit 4. The policy requires that Ð[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.Ñ Petitioner

p roved that Respondent violated P olicy 4213 by proving that

R espondent forcefully grabbed L. H. and struck him on the

shoulder.

39. Petitioner proved that Respondent vi olated the policies

alleged in c ounts 2, 3, and 4. The violation of the foregoing

School Board p olicies constitutes misconduct in office.

40. In making the penalty recommenda tion that follows, the

undersigned considered that the School Board has a progressive

discipline policy and that the Respondent has a relatively long

employment history with the School Board. Also considered is the

fact that Respondent did not strike L.H. with sufficient force to

bruise him. Notwithstanding those considerations, the

undersigned is constrained to recommend that RespondentÓs

employment be terminated because of the egregious nature of her

mis conduct in striking a four - year - old special needs child.

RECOMMENDATION

The following recommendati ons are based on the foregoing

F indings of Fact and Conclusions of L aw:

It is RECOMMENDED that the Miami - Dade County School Board ,

en ter a final order adopting the Findings of Fact and Conclusions

of L aw set forth in this Recommended Order. It is further

RECOMMENDED that the final order terminate the employment of

Sharon V. Eaddy.

DONE AND ENTERED this 15 th day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

CLA UDE 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 15 th day of January , 2015 .

ENDNOTE S

1/ Respondent asserts that the conduct occurred April 11, 2014.

RespondentÓs Exhibit 1, an Incident Report filed by the school

police department, was offered in support of that argument .

However, the date reflected on the Incident Report appears to be

the date the police department received the complaint, as opposed

to the date of the conduct. The findings and conclusions set

forth in this Recommended Order do not turn on whether the

c onduct occurred April 9 or April 11, 2014.

2/ Ms. Gutierrez testified as to the interaction between

Respondent and L.H. at page 30 of the transcript, beginning on

line 3: ÐAnd she was like dragging him, and I saw when she like

slapped him. Like she g ave him three pow - pows on the shoulder.Ñ

COPIES FURNISHED:

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761 - 1538

(eServed)

Sara M. Marken, Esquire

Miami - Dade C ounty School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

L ois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, S uite 912

Miami, Florida 33132

(eServed)

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.