19-005158TTS Broward County School Board vs. Pamela D. Beal Status: Closed Recommended Order on Monday, January 4, 2021.

Summary: The school board failed to prove that an elementary school teacher slapped a student?s face in class and, thus, lacked just cause to suspend the teacher without pay for five days.

P RELIMINARY S TATEMENT

At a meeting on September 17 , 2019, Petitioner Broward County School

Board (the “School Board”) voted to suspend Respondent Pamela D. Beal

( “ Beal ” ) for a period of five days without pay from her employment as a

teacher . The reasons for that action were spelled out in an Administrative

Complaint dated August 22, 2019 . The crux of the complaint is that Beal

allegedly slapped a student in the face on December 7, 2018 .

Beal timely requested a formal administrative hearing by letter dated

September 6, 2019 . The School Board referred the matter to DOAH for

further proceedings , and thi s file was opened on September 26 , 2019 . Upon

assignment, the undersigned set the final hearing , which eventually took

place on October 1 5, 20 2 0.

At the final hearing, Petitioner called as witnesses Martha Quesada,

Allen Roberts, Maria Henao, and Denise Lizano, and it offered Petitioner ’ s

Exhibits 1 through 9 and 11 , which were received in evidence . Official

recognition was taken of School Board Policy 4008 (marked for identification as Petitioner’s Exhibit 10) . Beal testi fied on her own behalf and presented the

testimony of Nichole Sanders . Respondent ’ s Exhibits 1 C, 1F, 5A, 5B, and 5C

were admitted as well .

The final hearing transcript was filed on November 5 , 20 20 . Each party

timely filed a Proposed Recommended Order within the 30 - day deadline

established at the end of the hearing, and these submissions were considered

in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the official statute law of the state

of Florida refer to Flor ida Statutes 2019 , except that all references to statutes

or rules defining disciplinable offenses or prescribing penalties for

committing such offenses are to the versions that were in effect at the time of

the alleged wrongful acts .

F INDINGS OF F ACT

1 . The School Board is the constitutional entity authorized to operate,

control, and supervise the Broward County Public School System . At all

times relevant, it was (and remained as of the final hearing) Beal’s employer.

2 . Beal is an elementary school teach er who, during the relevant school

year (2018 - 19), taught a first - grade class comprising four special education

students with autism , one of whom is named R.S .

3 . The incident giving rise to this action occurred on Friday, December 7,

2018 . Th roughout t he morning that day, R.S. had been coughing

intermittently, prompting Beal to admonish R.S. , multiple times, about the

need to cover his mouth.

4 . At some point, R.S. left his desk and approached Beal, who was sitting

behind a table at the front of the classroom . R.S. positioned himself near Beal

and proceeded to cough in her face . Because R.S. did not testify, there is no

direct evidence regarding his intentions . I t is reasonable to infer from R.S.’s

conduct (a nd is hereby found) , howe ver, that — for whatever reasons — R.S.

was deliberately direct ing respiratory jets towards Beal , using uncovered

coughs to invade the teacher’s personal space .

5 . Beal continued to implore the student to cover his mouth and to move

away from her, but to no av ail .

6 . What happened next is in dispute . There were two adults in the

classroom at this crucial moment — Beal and Martha Quesada, a

paraprofessional who had been assigned to work one - on - one with one of

Beal’s students (not R.S.) . A second paraprofessional assigned to Beal’s

classroom, Jeffrey Roberts, was having lunch in the media center when this

incident took place.

7 . Beal testified that she began waving her hands back and forth in front

of her face, to fan away the respiratory droplets from R.S.’s uncov ered coughs .

Beal’s testimony in this regard is credited as truthful , for the a ct she

described is a spontaneous, self - protective response to being c oughed on .

8 . Ms. Quesada testified that Beal did more than wave . She claims that

Beal committed a battery upon R.S., slapping the boy across the cheek, hard

enough to make a clapping sound, which she says she heard . Ms. Quesada

testified that R.S. exclaimed, “Ms. Beal, you hit me!” as he began screaming loudly and incon solably . This is obviously a serious accusation, which, if true,

constitutes just cause for a five - day suspension .

9 . Although the possibility that Beal slapped R.S. cannot be ruled out,

nevertheless, based up on the evidence presented, it cannot be found that,

more likely than not, an attack occurred such as that described by

Ms. Q uesada . Her testimony is insufficiently persuasive to carry the School

Board’s burden of proof.

10 . Given that the School Board’s case rests almost entirely on

Ms. Quesada’s shou lders, a n explanation is in order as to why her testimony

comes up short . To begin, in her written statement prepared for the School

Board on December 10, 2018, just a few days after the events at issue,

Ms. Quesada described what she had seen as follows: “I saw Ms. Beal

touching (like slapping) the left side of [R.S.’s] face and he screams and start

screaming uncontrollably. ” Touching is not like slapping, and yet here, in this

important document, knowingly tendered as evidence during the

investigation of the incident, Ms. Quesada conflated the two . This is not a

minor matter, either . It is the material fact in dispute . Did Ms. Quesada see

Beal merely touch R.S. and equate that with a slap?

11 . Then there are the little corroborating details about which

Ms. Quesada testified, but which she failed to mention in her (nearly)

contemporaneous written statement . Ms. Quesada wrote nothing about

having heard the alleged slap, nor did she record R.S.’s supposed excited

utterance accusing Beal of hitting him . While t hese are not necessary facts,

they tend to make the essential allegation that Beal slapped R.S. somewhat

more believable, and the School Board relies upon them . Their absence from

the written statement, however, makes these seem like later embellishments, which , in turn , calls into question Ms. Quesada’s reliability as a witness.

12 . Next, a third corroborating detail contained in Ms. Quesada’s

testimony is affirmatively disproved by the greater weight of the evidence . There is no dispute that after being coughed on by R.S., who was disobeying Beal’s instructions to stop, Beal left the classroom to ask Mr. Roberts to

return and help her redirect R.S . (Mr. Roberts had known R.S. for a coup le of

years and had a good rapport with him.) Beal found Mr. Roberts i n the media

center, and he accompanied her back to the classroom.

1

13 . Everyone agrees that Beal was out of the classroom for about three

minutes . According to Ms. Quesada, R.S. continued to scream the entire time

and was still screaming when Beal and Mr. Roberts returned to the

classroom . Ms. Quesada testified that Mr. Roberts tried to get the boy to calm

down, failed, and thus had to remove the student, who was still screaming as

he exited the room . Such behavior on R.S.’s part would be consistent with

h aving been slapped by Beal, which is why the School Board draws attention

to this aspect of Ms. Quesada’s testimony.

14 . Both Beal and Mr. Roberts, however, testified that R.S. was calm and

quiet when they entered the classroom . Mr. Roberts recalled that R.S. was

his usual self, exhibiting ordinary behavior . Mr. Roberts brought R.S. back to

1 The School Boa rd emphasizes Mr. Roberts’s testimony that Beal was a “little upset” or

“frustrated” when Beale approached him in the media center , as if this implies guilt . Beal’s

reported mood, however, comports with the circumstances as she recounts them . Indeed, it

wo uld be surprising if Beal were not at least somewhat upset, since b eing coughed on at close

range is annoying, as nearly everyone who has had the experience can attest . The

undersigned regard s Beal’s apparent frustration in that moment as a neutral fact .

the library where he let the student watch a movie while he (Mr. Roberts)

finished eating his lunch . During the 15 minutes remaining in Mr. Ro berts’s

lunch break, R.S. acted normally, and when it was time to go back to class, R.S. expressed no fear or reluctance, return ing to Beal’s room without

incident .

15 . In addition to these chinks in Ms. Quesada ’s credibility armor are her

immediate responses — or rather nonresponses — to Beal ’ s alleged abuse of

R.S . It is undisputed that after Beal left the cla ssroom , leaving Ms. Quesada

in charge, Ms. Quesada did not use the telephone at her disposal to call security or request other help . Nor did she t ry to calm or examine R.S., whom

she claims had just been slapped and was screaming . Ms. Quesada did not

tell Mr. Roberts about the alleged attack when he returned to the classroom .

Indeed, M s . Quesada did not rush to inform any body about what she

allegedl y had witnessed, including R.S.’s mother , whom she knew and could

have approached when R.S. was picked up after school .

16 . Instead of promptly reporting the alleged incident, Ms. Quesada

waited until after her shift had ended to call Maria Henao, the aut ism coach,

who happened to be traveling at the time and unable to come to the phone

right away . The two did speak the next day (Saturday), which was when

Ms. Quesada first notified the School Board that she had seen Beal slap R.S .

Ms. Quesada’s unhurried reaction to the alleged slap seems incommensurate

with relative urgency of the situation . One would expect an adult eyewitness

to classroom child abuse by a teacher to respond with a bit more vigor . Had

Ms. Quesada intervened with alacrity, a timelier, an d perhaps more fruitful,

investigation would have been possible .

17 . Finally, there is some reason to believe that Ms. Quesada might be

biased . At hearing, Ms. Quesada implied that a son of hers had died as a

consequence of unreported child abuse, and sh e forthrightly acknowledged

that, because of this personal tragedy, her “jobs” are to “protect the kids” and

“to come forward no matter what” if she sees someone hurt a child . In light of

these facts, it is reasonable to discount Ms. Quesada’s testimony so mewhat to

account for the possibility that she might assume the worst when it comes to

uncommon adult - child interactions, such as the one at issue, and to r esolve

doubts and uncertainties in favor of the child and against the adult.

18 . Of course, none of the foregoing necessarily means that Ms. Quesada

is not telling the truth, at least as she perceived the incident . T aken together,

however, these considerations negatively affect the weight of her testimony,

which to repeat is essentially, albeit not enti rely, uncorroborated . The

corroborating evidence , such as it is, consists of two hearsay declarations by

R.S . One is the excited utterance, which was mentioned above . The other is

R.S.’s alleged reaction to being asked by Ms. Henao, on the Monday following

the alleged incident, why he had coughed in Beal’s face . According to

Ms. Henao, R.S. answered this question by plac ing his hand on his cheek,

bec oming upset, and s aying , “ow. ” It should be added that this alleged

communication occurred while Ms. H e nao was walking R.S. back to class

after his formal interview in connection with the investigation of Beal

stemming from Ms. Quesada’s accusation, during which R.S. had said

nothing about being slapped.

19 . These hearsay declarations were deemed admissible and considered. 2

The undersigned considers R.S.’s alleged hearsay statements to be of little

probative value because there is persuasive evidence that, at the time of the

incident, R.S. was prone to exaggerating the effects of ordinary, harmless

physical con tact . Nichole Sanders, a teacher who was not involved in the

subject incident, testified credibly that on several occasions around that time ,

R.S. declared that Ms. Sanders was hurting him, when in fact she was merely

2 R.S.’s excited utterance is admissible under an exception to the hearsay rule . § 90.803(2),

Fla. Stat . The nonverbal conduct described by Ms. Henao (which the undersigned has treated

as having been intended by R.S. as an assertion) is admissible to “suppl ement”

Ms. Quesada’s testimony . § 120.57(1)(c) , Fla. Stat . This case serves as a reminder that

admissibility and credibility are not synonymous .

holding his hand. 3 This tendency to ex aggerate, coupled with the fact that

R.S.’s statements are only hearsay , after all, is enough for the fact - finder to

give this evidence very little weight.

20 . The bottom line is that Ms. Quesada’s thinly corroborated testimony,

which is compromised by the several credi bility defects described above, is

insufficiently persuasive to support a finding that Beal slapped R.S. as

charged.

21 . That said, Beal was not an especially effective witness, either . She was

at times overly defensive and a little evasive . To be fair, however, being

accused of child abuse , the undersigned imagines, is likely to negative ly

af fect a p arty’s demeanor on the stand . Therefore, these factors do not compel

a significant credibility discount . More troubling , in contrast, is Beal’s

equivocation regarding whether her hand or fingers made contact with R.S. during the incident .

22 . Beal at times has denied that she touched R.S. and at other times

allowed that her fingertips might have made contact with him inadvertently .

Mr. Roberts testified that, on the next Monday after the incident (which was

by then under investigation), Beal told him that she “might have” slapped

R.S. on the hand, or even i n the face . At hearing, Mr. Roberts emphasized

that “might” was the “key word. ”

23 . While Beal has expressed uncertainty about whether she touched R.S.

that morning, she has consistently denied slapping the student . In this

regard, Mr. Roberts’s testimony conflicts with Beal’s . Arguably, Mr. Roberts’s

3 The School Board argues that Ms. Sanders’s testimony does not establish that R.S. lied

about being touched, as opposed to exaggerating the effects of the physical contact . This is

true as far as it goes . But Beal is not charged with merely “touching” R.S . She is accused of

intentionally slapping the student. Ms. Sanders’s testimony establishes that R.S. was

cap able of dramatizing a nonharmful touch and , in fact , did so several times in her presence .

If, as is possible, Beal had made incidental, harmless contact with R.S. while waving her

hands in defensive response to his purposeful, uncovered coughing in her pe rsonal space, it

would be consistent with R.S.’s known behavior for him to have screamed “Ouch, you’re

hurting [or hitting] me,” or words to that effect .

testimony concerning Beal’s quali fied “admission” corroborates Ms. Quesada’s

testimony about the incident .

24 . As the fact - finder, the undersigned considers the “admission,” as

recounted by Mr. Roberts, to be insufficiently probative to tip the scale in the

School Board’s favor . There ar e two reasons for this . First, the “admission” is

hearsay , 4 and , hence , the possibility exists that Beal’s words lose some

subtlety of the speaker’s intended meaning when filtered through a third party, even a relatively friendly one such as Mr. Roberts . S econd, the “key

word” — might — softens the “admission” to the point that it is not really an

“admission” in the sense of being a concession to the truth of the matter .

25 . Regarding Beal’s credibility , the bottom line is this : s he failed to prove

her innocen ce . Fortunately for Beal, however, she was not required to do so .

Beal has consistently denied having slapped R.S., which is the gravamen of

the charges against her . The School Board failed to prove by a preponderance

of the evidence that Beal did, in fact, slap the student . Beal’s shortcomings as

a witness do not make the School Board’s evidence more persuasive; the result, rather, is that the entire record, including Beal’s testimony, is

insufficient to support a finding that, more likely than not, Be al slapped (or

did not slap) R.S. on December 7, 2018 .

D ETERMINATION OF U LTIMATE F ACT

2 6 . The School Board has failed to prove its allegations against Beal by a

preponderance of the evidence.

C ONCLUSIONS O F L AW

2 7 . DOAH has personal and subject matter ju risdiction in this proceeding

pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

2 8 . A district school board employee against whom a disciplinary

4 To be sure, Beal’s own statement is admissible against her under the “admissions”

exception to the hearsay rule . § 90. 8 03(18), Fla. Stat.

proceeding has been initiated must be given written notice of the specific

charge s prior to the hearing . Although the notice “ need not be set forth with

the technical nicety or formal exactness required of pleadings in court, ” it

should “ specify the [statute,] rule, [regulation, policy, or collective bargaining

provision] the [school b oard] alleges has been violated and the conduct which

occasioned [said] violation. ” Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).

2 9 . Once the school board, in its notice of specific charges, has delineated

the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated . See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ’ t of Ins. ,

685 So. 2d 1371, 1372 (F la. 1st DCA 1996); Klein v. Dep ’ t of Bus. & Prof ’ l

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep ’ t of Prof ’ l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep ’ t of Prof ’ l Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 199 0), rev. den . , 576 So. 2d 295

(Fla. 1991).

30 . In an administrative proceeding to suspend or dismiss a member of

the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the

charged offense(s) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch. Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993).

31 . The instructional staff member ’ s guilt or innocence is a question of

ultimate fact to be decided in the context of each alleged violation . McKinney

v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DC A 1995).

32 . In its Administrative Complaint, the district charged Beal with

Misconduct in Office and other offenses, the essential factual grounds of

which is that, on December 7 , 2018, Beal intentionally slapped R.S. across

the face . The parties agreed that , if this factual allegation were proven, the

School Board would have just cause to suspend Beal for five days without

pay .

33 . The School Board , however, failed to prove, by a preponderance of the

evidence, that Beal slapped R.S. as alleged . Thus, al l the charges against

Beal necessarily fail, as a matter of fact . Due to this dispositive failure of

proof, it is not necessary to render additional conclusions of law.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Broward County School Board enter a final order

exonerating Pamela D . Beal of all charges brought against h er in this

proceeding, rescinding the suspension , and awarding Beal back salary and

benefits as required under section 1012.33(6) (a) .

D ONE A ND E NTERED this 4 th day of January , 202 1 , in Tallahassee, Leon

County, Florida.

J OHN G. V AN L ANINGHAM

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 4 th day of January , 202 1 .

C OPIES F URNISHED :

Mark S. Wilensky, Esquire

Dubiner & Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington, Florida 33414 - 8594

(eServed)

Maya A. Moore, Esquire

Douglas G. Griffin, Esquire

Andrew Carrabis, Esquire

Broward County School Board

600 Southeast Thi rd Avenue , Eleven th Floor

Fort Lauderdale, Florida 33301

(eServed)

Robert W. Runcie, Superintendent

Broward County School Board 600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tall ahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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.