17-002163TTS Miami-Dade County School Board vs. Marta I. Zayas Status: Closed Recommended Order on Tuesday, November 21, 2017.

Summary: Petitioner failed to prove that Respondent used inappropriate discipline on a student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 2163TTS

MARTA L. ZAYAS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 5 , 2017 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Kim M. Lucas , Esquire

Miami Dade County Public Schools

School Board Attorney's Office

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 is whether Petitioner has just cause to suspend

Respondent for 15 days without pay for misconduct in office,

gross insubor dination, or a violation of another rule and

policy .

PRELIMINARY STATEMENT

The Notice of Specific Charges dated August 16, 2017 ,

alleges that Petiti oner employed Respondent in 1991 as a

temporary instructor . The Notice of Specific Charges alleges

that , from July 2003 through present, Respondent has taught

Spanish at Emerson Elementary School.

The Notice of Specific Charges alleges that, in

December 2016, Respondent grabbed students, leaving fingernail

marks on one of them, and belittled and screamed a t students

during class, resulting in several parents ' requesting the

school administration to remove their children from Respondent's

Spanish class. Subsequently, Respondent allegedly issued a

disciplinary referral for on e student in retaliation for him

reporting her alleged misconduct.

On April 5 , 2017 , Petitioner suspended Respondent without

pay for 15 days for misconduct in office, gross insubordination ,

violations of School Board Policies 3210, 3210.01, 3213 and

5630, and violations of Florida Admin istrative Code Rules 6A -

5.056 and 6A - 10.081 . On April 7, 2017, Respondent requested a

formal administrative hearing.

At the hearing, Petitioner called four witnesses and

offered into evidence five exhibits : Petitioner Exhibits 9 , 10,

15 , 16, and 18 . Respondent called one witness and did not offer

any exhibits . All exhibits were admitted , except Petitioner

Exhibits 15 and 16 were admitted, not for the truth, but to

establish directives that Respondent allegedly defied as part of

Petitioner's claim of gross insubordination.

The court reporter filed the transcript on November 8,

2017. The parties filed proposed recommended order s by

November 20 , 2017 .

FINDINGS OF FACT

1. For at least the past ten years, Respondent has taught

Spanish at Emerson El ementary School. She has served the 15 - day

suspension, without pay, for the matters described below.

2. In December 2016, Respondent taught a fifth - grade

class. One student, D. I., testified in person at the h earing,

and another student, H. D., testified by way of deposition . D. I.

testified that Respondent met the class after a restroom break ,

math class, or a break to "get our bags." Respondent was

escorting the class to her classroom, according to D. I. Walking

faster t han the boy in front of him, D. I. tripped over the boy,

stumbled out of line, and uttered loudly, "oh, crap."

3. D. I. testified that Respondent grabbed him by the

shoulder, applying a "moderate amount of force" -- language that,

he admitted, the investigator had used when asking him about the

incident. Another student, H. D., testified that Respondent

pulled D. I. by the hand. This student later testified that D. I.

showed the student a scrat ch mark on his shoulder that D. I.

claimed to have been caused by Re spondent.

4. D. I. testified that Respondent placed him and his

friend in front of a column or wall. H. D. testified that

Respondent addressed the boys in the middle of the hallway.

D. I. testified that Respondent allowed the rest of the class to

proceed and informed the boys that she was going to assign them

a D or an F in conduct -- the unce rtainty being the product of

D. I.'s recollection , not Respondent's resolve .

5 . One week later, D. I. heard from friends that they had

complained about Respondent, so D. I. and his friend decided to

report the matter to the principal. After doing so, an

investigation ensued.

6 . At some point after filing his complaint with the

principal, D. I. received a disciplinary referral from Respondent

for singing loudly in class, after being directed to s top . D.I.

testified that he was humming, and the rest of the class was

much louder.

7 . D. I.'s testimony is not credited except for the fast

walking, tripping while in line, and uttering a dis ruptive

comment. Otherwise, D. I.'s testimony is self - serving and vagu e.

D. I . failed to report the incident promptly. Wh en he reported

the incident, D. I . was motivated to join his friends in causing

trouble for Respondent. For her part, Respondent recalls

nothing about the incident -- likely because nothing out of w hat

was appropriately routine happened on the day in question. As

for the disciplinary referral, Responden t reasonably determined

that D. I.'s behavior was interfering with the ability of the

other students to receive instruction.

CONCLUSIONS OF LAW

8 . DOAH has jurisdiction of the subject matter.

§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

9 . Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. § 120.57(1)(j) ,

Fla. Stat. ; Allen v. Sch . Bd . of Dade Cnty . , 571 So. 2d 568

(Fla. 3d DCA 1990) (teacher - dismissal case).

10 . Petitioner has failed to prove the material

allegations of the incident in the hallway.

1 1 . Petitioner has failed to prove that the subsequent

disciplinary referral was retaliatory. Section 1003.32(4) ,

provides: " A teacher may remove from class a student whose

behavior the teacher determines interferes with the teacherÓs

ability to communicate effectively with the students in the

class or with the ability o f the studentÓs classmates to learn. "

D uring instruction, D.I. was singing loudly and ignoring

Respondent's directive to stop. Respondent's disciplinary

referral was justified due to the disruption posed to the rest

of the class by D. I.'s d efiant singing , which defiantly

continued after a warning .

1 2 . Section 1012.33(6)(a) provides that, if the charges

are not sustained, Petitioner must immediately reinstate

Respondent and pay her back salary.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing

the Notice of Specific Charges against Respondent and p aying her

the salary that she did not receive during the suspension .

DONE AND ENTERED this 21st day of November , 2017 , 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

File d with the Clerk of the

Division of Administrative Hearings

this 21st day of November , 2017 .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

(eServed)

Kim M. Lucas, Esquire

Miami Dade County Public Schools

School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Da de County School Board

1450 Northeast Second Avenue , Suite 912

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.