20-000433TTS Miami-Dade County School Board vs. Georgette A. Lucas Status: Closed Recommended Order on Friday, December 4, 2020.

Summary: Respondent?s physical handling of two students warrants discipline, and progressive discipline following a prior reprimand warrants a ten-day suspension without pay.

P RELIMINARY S TATEMENT

On January 15, 2020, the School Board took action to suspend without

pay and initiate dismissal proceedings against Respondent. Respondent

timely requested a hearing pursuant to sections 120.569 and 120.57(1), and the matter was referred to DOAH for conduct of a hearing.

This case was set for a video teleconference hearing on May 29, 2020. On

May 18, 2020, the undersigned ’ s office contacted counsel for the parties to

inquire whether they objected to the final hearing being co nducted through a Zoom conference. On that day, Respondent ’ s counsel notified the

undersigned ’ s office that Respondent did not agree to conduct the hearing

through a Zoom conference. Due to travel restrictions and the fact that the Miami DOAH office was cl osed to the public for live appearances, on May 20,

2020, the undersigned issued an Amended Notice of Hearing by Zoom

C onference for May 29, 2020.

On May 21, 2020, Respondent filed a Motion to Continue and Reschedule

Final Hearing, objecting to conducting the hearing through a Zoom

conference. Respondent expressed concerns about the ability to meaningfully

cross examine witnesses through a Zoom conference. On May 22, 2020, the undersigned denied Respondent ’ s motion to continue.

During the Zoom hearing on May 29, 2020, the ALJ, counsel for

Petitioner, and Petitioner ’ s witnesses appeared through the Zoom video

conference. Respondent and her counsel appeared through the telephone,

without the opportunity to observe the other participants in the Zoom conferenc e. At no time prior to the hearing did Respondent or her counsel

inform the ALJ or opposing counsel that they would not have access to a personal computer, a laptop computer, an electronic tablet, or a smart phone to allow them to participate with video in the hearing. According to counsel

for Respondent, he travelled to Miami to be with his client at her classroom

teacher union ’ s office, and found that no computers were available for video

access to the Zoom conference. Respondent and her counsel did not a ttempt to

access the Zoom conference by any video means, including a smart phone, nor

did counsel for Respondent remain in his office in Clearwater which,

presumably, had full computer video capability.

The final hearing was held on May 29, 2020. Petition er presented the live

testimony of student s and alleged victims , C.J. and J.E. ; T eacher Alisa

Bennett ; and Principal Pedro Cedeno. Petitioner ’ s Exhibits 1 through 4, 6

through 10, 12, and 16 were admitted into evidence.

Respondent testified on her own beh alf and offered no exhibits.

A one - volume T ranscript of the final hearing was filed on July 17, 2020,

and the parties timely filed proposed recommended orders. Both proposed

recommended orders have been duly considered in the preparation of this Recommend ed Order. All references to Florida Statutes are to the version in

effect at the time of the incidents giving rise to the proposed termination of

Respondent ’ s employment as a teacher.

F INDINGS OF F ACT

1. At all times material hereto, Petitioner was a dul y constituted School

Board charged with the duty to operate, control , and supervise all free public

schools within the S chool D istrict of Miami - Dade County, Florida (“School

District”), pursuant to a rticle IX , section 4(b) of the Florida Constitution and

s ection 1012.23, Florida Statutes.

2. At all times material hereto, Respondent was employed as an

elementary school teacher at Van E. Blanton Elementary School (“Blanton”)

by the School Board and held a professional services contract. She began

working for the School District as a substitute teacher in 1994 and has been

employed as a full - time teacher for 14 years.

3. On April 20, 2016, Respondent was issued a Professional

Responsibilities Memorandum regarding student discipline. The purpose of

the memo was to remind Respondent of how to properly treat children who

are misbehaving after she was observed sending two students to stand in the

corner after blurting out answers.

4. On or about April 25, 2016, Respondent hit a student with her hand on

the student ’ s arm, leaving the student ’ s arm visibly red and welted.

5. A summary of a conference - for - the - record from May 18, 2016, was

admitted into evidence. Pedro Cedeno, the principal at Blanton for the past

three years, stated that he considered the current inci dents similar in nature

to this prior incident from 2016.

6. On May 19, 2016, Respondent was issued a written reprimand relating

to the April 25, 2016 , incident.

7. On April 18, 2017, the Education Practices Commission (“EPC”) filed an

Administrative Compl aint against Respondent based on the April 25, 2016 ,

incident under EPC Case No. 17 - 0457 - RT.

8. On December 14, 2017, a Final Order was entered in the EPC case,

adopting the parties ’ Settlement Agreement, which issued Respondent a

letter of reprimand and p laced her on one year ’ s probation.

9. Throughout Respondent ’ s tenure with the School Board prior to the

instant matter, the only discipline she received was the reprimand described above.

10. Three incidents, occurring on March 8, 13, and May 23, 2019,

res pectively, gave rise to these proceedings.

11. Respondent worked at Blanton as a first - grade teacher. On March 8,

2019, Mr. Cedeno was standing near the main office when he saw

Respondent and her class coming in from the hallway. Mr. Cedeno saw

Respondent pull a student, C.J., who was kneeling on the ground at the back

of the line. Respondent said something to the student, but Mr. Cedeno could

not hear it. Mr. Cedeno saw Respondent pull the student by the arm. He

testified that Respondent was “pulling her t o move her whole body over to the

back of the class … it was more of a pull, which is what caught my attention.”

12. Mr. Cedeno approached Respondent and asked, “What ’ s going on?” He

also told Respondent that they cannot pull students like that. He advised

Respondent it would be better to leave the child there and call for attention

or assistance. Apparently, the video cameras were not working on March 8

because no video footage was available for Mr. Cedeno, Respondent, or the

undersigned to review after th e incident or at hearing.

13. On March 13, 2019, Mr. Cedeno saw via video that Respondent had

her students lined up as they were coming or going into the classroom.

Mr. Cedeno observed Respondent grab and pull a student into the class. That

caught his atte ntion. It was not an appropriate way for Respondent to have

handled the situation. Both the March 8 and 13 , 2019, incidents involved C.J.

14. The March 13, 2019, video showed that C.J. was moving slowly in the

hallway while the rest of Respondent ’ s student s were already in the

classroom. Respondent waved at C.J. and said something to the effect of “let ’ s

go.” When C.J. did not respond, Respondent went to C.J., took her by the

arm, and walked her into the classroom. While the video does not show excessive fo rce being used to pull C.J. up from the floor where she was tying

her shoe, it did show more than Respondent reaching out her hand, then waiting for C.J. to take her hand to be led. There was a small amount of force involved in getting C.J. up and moving. Respondent testified she was not mad

at C.J., but she was firm in telling C.J. she needed to get going and into the

classroom.

15. From the video, C.J. did not seem embarrassed and was not crying

when she was physically urged up and into the classroom. Th e video does not

evidence violence, anger, or aggression. It does evidence a teacher pulling a

young student up from the floor and walking her briskly into the classroom.

At hearing, however, C.J. testified credibly that she was both embarrassed

and sad by the incident.

16. Following the March 13 , 2019, incident, Mr. Cedeno filed a personnel

investigative form with the School District ’ s Office of Professional Standards.

No action was taken to remove Respondent from her position or to impose

any discipline.

17. J.E. , a student, testified regarding the May 23, 2019, incident. He s a i d

Respondent w as his teacher during the prior school year. He watched the

video of the incident and identified both himself and Respondent in the video.

J.E. had asked Respondent if he could go to the bathroom. Respondent did

not allow J.E. to use the bathroom at that time. Then, J.E. tried to get into

the classroom to use the bathroom and Respondent pushed J.E. The video

shows Respondent push J.E. J.E. fell and then got up. His leg was hurting

and it made him feel mad.

18. J.E., a large child for his age, appeared somewhat distracted while

testifying, and his mother had to prompt him once or twice to pay attention to the questions being asked and to give audible answers. However, his

recollection of the Ma y 23, 2019, incident was clear. He admitted that he was

acting up, which was confirmed by Respondent, but was “mad” at being pushed into the classroom where he landed on one of his classmates. He was only mildly injured and did not r equire first aid or medical care as a result of

his fall.

19. Respondent noted that J.E. was a disruptive student who is

disobedient, bigger than the rest of the students in the class, and is known for pushing and bullying the other students. R espondent te stified that on

May 23, 2019, r ather than entering the classroom when he was supposed to,

J.E. doubled back, grabbed another student, and spun the student around, which caused that student to cry. Respondent was obviously frustrated by

J.E. ’ s behavior and gave him a push into the room. J.E. bumped into his best

friend, which sent the two of them sprawling onto the ground.

20. According to Respondent, J.E. fell to the ground laughing and

clowning around, after which they all sat down and started class. J.E. did not

appear embarrassed or upset by the incident, Respondent testified.

21. The May 23, 2019, incident was captured on video and was personally

witnessed by a teacher, Alissa Bennett, who was coming down the hall with

her class at the time.

22. Ms. Be nnett is a fifth - grade teacher at Blanton and was employed as

such during the incidents giving rise to these proceedings. Ms. Bennett

knows of Respondent but does not know Respondent personally. Ms. Bennett

testified regarding the May 23, 2019, incident an d reviewed the video of the

incident during her testimony. On May 23, 2019, Ms. Bennett was walking

her class to lunch. It was about 11:30 or 11:35 a.m. She came out of the

stairwell and saw a big commotion in front of her. There was a lot of yelling

and k ids in the hallway. When Ms. Bennett walked closer, she saw

Respondent push a student into the classroom. Ms. Bennett kept walking and heard one of her students exclaim, “ [w] ow, that teacher just pushed that

student.” Ms. Bennet t said, “I was kinda like, o h, my God. Did that just

happen? Did I just see that?” She recognized this as a serious incident. She

took her students to lunch. Later that night, she told her boyfriend about the

events she witnessed at school. She was a new teacher and was not sure what

to do about it. Her boyfriend encouraged her to report the incident. The

following day, on May 24, 2019, Ms. Bennett reported the incident via text to

the counselor. She also spoke to Mr. Cedeno about what she saw.

23. Mr. Cedeno acknowledged speaking wit h Ms. Bennett about the

incident. He explained that Respondent could have avoided the situation by using a call button, an emergency button that immediately notifies the office,

or she could have asked another person in the hallway for assistance. For

exam ple, there are always security and staff in the hallway , and they are

present in the video evidence submitted. The security and other staff

members have radio access. Mr. Cedeno testified that there was no excuse,

based upon what he saw in the video, for R espondent to push J.E.

24. The School Board and the United Teachers of Dade, the classroom

teachers union, have agreed to be bound by the principle of progressive

discipline, and that discipline imposed shall be consistent with that principle.

Accordingly, they have agreed that the degree of discipline shall be

reasonably related to the seriousness of the offense.

C ONCLUSIONS OF L AW

25. DOAH has jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569, 120.57(1), and 1012.33(6)(a), Florida

Statutes.

26. In accordance with the provisions of a rticle IX, section 4(b) of the

Florida Constitution, district school boards have the authority to operate,

control, and supervise all free public schools in their respective distri cts and

may exercise any power except as expressly prohibited by the state

constitution or general law. A school board ’ s authority extends to personnel

matters and includes the power to suspend and dismiss employees.

§§ 1001.32(2), 1001.42(5), 1012.22(1)(f ), and 1012.23(1), Fla. Stat.

27. In Florida, the district superintendent has the authority to make

recommendations for dismissal of school board employees, and the school boards have the authority to suspend, without pay, school board instructional

staff with professional service contracts for “just cause.” §§ 1001.42(5),

1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.

28. Since the School Board seeks to terminate Respondent ’ s employment,

the School Board bears the burden of proving the allegations in its Not ice of

Specific Charges by a preponderance of the evidence. See McNeill v. Pinellas

Cty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade

Cty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); and Dileo v. Sch. Bd. of Dade

Cty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

29. The preponderance of the evidence standard requires proof by “the

greater weight of the evidence” or evidence that “more likely than not” tends

to prove a certain proposition. See Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000) (citations omitted); see also Williams v. Eau Claire Pub. Sch. , 397

F.3d 441, 446 (6th Cir. 2005) (holding trial court properly defined the

preponderance of the evidence standard as “such evidence as, when

considered and compared with that opposed to it, has more convincing force

and produces [a] belief that what is sought to be proved is more likely true

than not true”).

30. “Just cause” is defined to include misconduct in office. See

§ 1012.33(1)(a), Fla. Stat.

31. The School Board ’ s authority to termi nate a teacher requires “just

cause” as defined under section 1012.33, which provides, in relevant part:

(1)(a) Each person employed as a member of the

instructional staff in any district school system

shall be properly certified pursuant to s. 1012.56 or

s. 1012.57 or employed pursuant to s. 1012.39 and shall be 33 entitled to and shall receive a written contract as specified in this section. All such

contracts, except continuing contracts as specified

in subsection (4), shall contain provisions for dismi ssal during the term of the contract only for

just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the

State Board of Education: immorality, misconduct

in office, incompetency, two consecutive annual perfor mance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance

evaluation ratings of unsatisfactory within a 3 - year

period under s. 1012.34, three consecutive annual

performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34,

gross insubordination, willful neglect of duty, or

being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

32. As to the count concerning “Misconduct in Office,” Florida

Administrative Code R ule 6A - 5.056(2) defines the term as follows:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in Rule 6A - 10.080, F.A.C.;

(b) A violat ion of the Principles of Professional

Conduct for the Education Profession in Florida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student ’ s learning

environment; or

(e) Behav ior that reduces the teacher ’ s ability or his

or her colleagues ’ ability to effectively perform

duties.

33. The Principles of Professional Conduct for the Education Profession in

Florida are codified in Florida Administrative Code Rule 6A - 10.081 , which

pr ovides, in relevant part, as follows:

(1) Florida educators shall be guided by the following ethical principles:

(a) The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and th e

nurture of a 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.

(b) The educator ’ s primary professional concern will

always be for the student and for the development

of the student ’ s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best profes sional judgment and

integrity.

(c) Aware of the importance of maintaining the

respect and confidence of on e ’ s colleagues, of

students, of parents, and of other members of

community, the educator strives to achieve and

sustain the highest degree of ethical conduct.

* * *

(2) Florida educators shall comply with the

following disciplinary principles. V iolation of any of

these principles shall subject the individual to revocation or suspension of the individual

educator ’ s certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires[, in relevant part,] that the individu al:

1. 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.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

6. Shall not intentionally violate or deny a student ’ s

legal rights.

* * *

8. Shall not exploit a relationship with a student for personal gain or advantage .

34. School Board Policy 3210, Standards of Ethical Conduct, provid es, in

relevant part:

All employees are representatives of the District

and shall conduct themselves, both in their

employment and in the community, in a manner that will reflect credit upon themselves and the school system.

A. An instructional staff mem ber shall:

* * *

3. make a 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;

* * *

7. not intentionally expose a student to

unnecessary em barrassment or disparagement;

8. not intentionally violate or deny a student ’ s legal

rights;

* * *

21. not use abusive and/or profane language or display unseemly conduct in the workplace [.]

35. Despite her protestations to the contrary, Resp ondent ’ s physical and

verbal actions endangered the mental and physical health and safety of h er

students. Her actions embarrassed them and can reasonably be seen as

causing them disparagement by their peers. C.J. testified that she felt

embarrassed and sa d by how Respondent treated her. J.E. said Respondent ’ s

actions made him mad. Yes, C.J. was dawdling in the hallway and J.E. was

acting up and clowning around, but these are elementary school students,

first graders, not more toughened high schoolers. They deserve a gentler

hand than Respondent exhibited here.

36. School Board Policy 3210.01, Code of Ethics, provides , in relevant part:

All members of the School Board, administrators,

teachers and all other employees of the District, regardless of their pos ition, because of their dual

roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the

common mission of providi ng a safe and high

quality education to all District students.

* * *

Application

This Code of Ethics applies to all members of the

Board, administrators, teachers, and all other employees regardless of full or part time status. It also applies to all persons who receive any direct economic benefit such as membership in Board

funded insurance programs.

Employees are subject to various other laws, rules, and regulations including but not limited to The Code of Ethics for the Education Profession in

Florida and the Principles of Professional Conduct of the Education Profession in Florida, F.A.C. Chapter 6A - 10.081, the Code of Ethics for Public

Officers and Employees, found in F.S. Chapter 112,

Part III, and Policy 3129, which are incorporated

here in by reference and this Code of Ethics should

be viewed as additive to these laws, rules and

regulations. To the extent not in conflict with any laws, Board policies or governmental regulations,

this Code of Ethics shall control with regard to

conduct. In the event of any conflict, the law,

regulation or Board policy shall control.

Fundamental Principles

The fundamental principles upon which this Code of Ethics is predicated are as follows:

* * *

E. Integrity - Standing up for their beliefs a bout

what is right and what is wrong and resisti ng

social pressures to do wrong;

F. Kindness - Being sympathetic, helpful,

compassionate, benevolent, agreeable, and gentle toward people and other living things;

* * *

H. Respect - Showing regard for the worth and

dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of

life and the environment ;

* * *

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the well -

being of the students and the honest performance of professional duties core guiding principles ;

B. To obey local, State, and national laws, codes

and regulations ;

C. To support the principles of due process to

protect the civil and human rights of all

individuals ;

D. To treat all persons with respect and to strive to be fair in all matters ;

E. To take responsibility and be accountable for his/her ac tions ;

* * *

G. To cooperate with others to protect and advance the District and its students ;

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect the student from conditions harmful to learni ng and/or

to the student ’ s mental and/or physical health

and/or safety;

* * *

E. shall not intentionally expose a student to unnecessary embarrassment or disparagement;

F. shall not intentionally violate or deny a student ’ s

legal rights [.]

37 . In this matter, Respondent failed to make a reasonable effort to

protect C.J. and J.E. from conditions harmful to their physical and mental

health. While both students were not cooperating with Respondent ’ s attempts

to get them into the classroom and mai ntain reasonable order, her actions

went beyond what is expected of a teacher of first and second - grade ,

elementary school students. Specifically, Respondent grabbed C.J., mildly

hurting C.J. physically and embarrassing C.J. Respondent ’ s actions also

made C.J. feel sad. Regarding J.E., Respondent pushed J.E., which made him

mad. While the behavior of the two students was not helpful to Respondent ’ s

attempts to maintain order among her students, she is not excused from

responsibility for her physical actions towards the two.

38. School Board Policy 3213, Student Supervision and Welfare, notes

that “[p]rotecting the physical and emotional well - being of students is of

paramount importance.” Teachers are charged with “maintain[ing] the

highest professional, mora l, and ethical standards in dealing with the

supervision, control, and protection of students on or off school property.”

Respondent ’ s actions fell short of this mandate.

39. While Respondent should not be excused from discipline for her

actions concerning students C.J. and J.E., the greater weight of the evidence

does not support departing from the principles of progressive discipline. It is

true that Respondent committed Misconduct in Office, as described in detail

in paragraphs 32 through 35 above, but s he should not receive the most

severe discipline available, namely, termination of her employment. Given

the existence of only one prior reprimand and the fact that the three

incidents giving rise to this matter occurred in such close proximity to one

anot her, significant discipline is warranted. With a clean record prior to these

incidents over a 14 - year career, however, except for the reprimand,

termination is not reasonably related to the seriousness of the offenses. A suspension of ten days, however, is clearly warranted here.

R ECOMMENDATION

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

R ECOMMENDED that the Miami - Dade County School Board enter a final order

suspending Respondent for ten days without pay and awarding her back pay

from the date her employment was terminated, except for the ten days of

suspension.

D ONE A ND E NTERED this 4th day of December , 2020 , in Tallahassee, Leon

County, Florida.

R OBERT S. C OHEN

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 4th day of December , 2020 .

C OPIES F URNISHED :

Cr istina Rivera, Esquire

Miami - Dade County School Board

Office of the School Board Attorney

1450 Northeast 2nd Avenue , Suite 430

Miami, Florida 33132

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearw ater, Florida 33761 - 1526

(eServed)

Michele Lara Jones, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Room 430

Miami, Florida 33132

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Av enue, Suite 912

Miami, Florida 33132

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran, Commissioner of Education

Department of Educ ation

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF 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.