20-001264TTS Palm Beach County School Board vs. Guyette Duhart Status: Closed Recommended Order on Friday, April 30, 2021.

Summary: Just cause exists to suspend teacher without pay for ten days for putting hand sanitizer in a student's mouth.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ALM B EACH C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 1264TTS

G UYETTE D UHART ,

Respondent .

/

R ECOMMENDED O RD ER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge Mary Li Creasy of the Division of Administrative

Hearings (ÑDOAHÒ) on January 14, 2021 , by Zoom video teleconference.

A PPEARANCES

For Petitioner: V. Dani elle Williams, Esquire

Jean Marie Middleton, Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard , Suite C - 331

West Palm Beach, Florida 33406

For Respondent: Nicholas Anthony Caggia , Esquire

Johnson and Caggia Law Group

867 West Bloomingdale Avenue, Suite 6325

Brandon, Florida 335 08

S TATEMENT OF T HE I SSUE

Whether just cause exists to suspend Respondent, a teacher, for ten days

without pay for putting hand saniti zer in a studentÔs mouth.

P RELIMINARY S TATEMENT

On February 19, 2020 , at its scheduled meeting, Petitioner, the Palm

Beach County School Board (ÑBoardÒ), took action to suspend Respondent,

Guyette Duhart , without pay for ten days from her t eaching positi on at Polo

Park Middle School (ÑPPMSÒ) . Respondent timely requested an

administrative hearing. The Palm Beach County Public School System

(ÑDistrictÒ) referred the matter to DOAH on March 5 , 2020, to assign an

Administrative Law Judge to conduct the final hearing.

After several motions for continuance were granted, t he final hearing was

held on January 14, 2021 . At the final hearing, the Board presented the

testimony of Respondent; Michael Aronson, PPMS Principal; Officer John

Michaels, District Police De partment ; and Vicki Evans - Par é , District Director

of Employee and Labor Relations . PetitionerÔs Exhibits 1 through 17, 19

through 31, 33, and 37 through 4 1 were admitted into evidence. Respondent

testified on h er own behalf and called Mr. Aronson in rebutt al. In addition,

students J.C. and A.G. testified via deposition. R espondentÔs Exhibits 1, 2,

and 4 through 6 were admitted.

The final hearing Transcript was filed on February 4 , 2021. The parties

requested extension s of time within which to file propose d recommended

orders, which w ere granted. The parties timely filed proposed recommended

orders, which were given consideration in the preparation of this

Recommended Order. Unless otherwise indicated, all statutory references are

to the versions in effect at the time of the alleged violations.

F INDINGS OF F ACT

The Parties

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

and supervise the District. Pursuant to Article IX, section 4(b) of the Florida

Constitution, and section 1001.32 , Florida Statutes, the District has the

authority to discipline employees pursuant to section 1012.22(1)(f), Florida

Statutes.

2. Respondent began her employment with the District in 2007. In

October 2019, she was teaching at PPMS as a science teacher. Pr ior to the

incident involved in this case, Respondent received no discipline from the

Board.

3. Respondent is an experienced teacher who has been trained on the

proper method of interacting with students, exercising best professional

judgment, and followin g policies, rules, and directives . Respondent received

training concerning ethics relative to her position with the District as a

teacher. Respondent has been through the orientation process for new

employees of the District three times.

The Incident G ivi ng Rise to Discipline

4. On October 14, 2019, Respondent was teaching a science class of

approximately 30 sixth and seventh grade students. In this class was sixth

grade student X.S. , who was being verbally disruptive.

5. Although X.S. was not cussing, Res pondent told him that he needed to

have his Ñmouth washed out with soap.Ò Respondent reached behind herself

to grab a bottle on her desk which was either hand soap or hand sanitizer.

6. X.S. and Respondent walked towards each other. X.S. challenged

Respond ent to ÑDo it!Ò Respondent raised the bottle to X.S.Ôs mouth and

pumped in a substance from the bottle.

7. X.S. bent over and spit on the floor. Respondent asked X.S. what he was

doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood

u p, X . S . was observed wiping his mouth and Respondent told him not to spit

on the floor.

8. X.S. left the classroom to go to the bathroom and rinse his mouth. His

fellow students immediately began talking about the incident while

Respondent returned to her desk.

The Investigation

9. X.S. did not immediately report the incident because he did not want to

anger his foster mother. However, on the day after the incident, October 15,

2019, three students approached PPMS P rincipal Aronson and Officer

Michaels and reported that Respondent had squirted hand sanitizer into

X.S.Ôs mouth.

10. Officer Michaels spoke to the students and X.S. individually and asked

them to provide written statement s regarding what they observed. 1

11. Principal Aronson and Officer Michaels questioned Respondent

regarding the incident. When approached by Officer Michaels, Respondent

asked, ÑWhat is this about?Ò He responded that , Ñthis is about squirting hand

sanitizer into a studentÔs mouth.Ò Respondent said, ÑIt wasnÔt hand sanitizer .

It w as soap.Ò Respondent did not deny squirting something into X.S . Ôs mouth

to either Principal Aronson or Officer Michaels.

12. Principal Aronson asked Respondent to leave campus. He

accompanied her to her classroom and observed a bottle of hand sanitizer on

her desk. Principal Aronson also contacted Human Resources to report the

incident and spoke to Human Resources Manager Jos e Fred who handled

overseeing the investigation from that point forward.

1 These written statements, Exhibits 11 through 16, were admitted over RespondentÔs

objection that t hey contain impermissible hearsay and are unduly prejudicial because these

students refused to attend their scheduled depositions or appear for final hearing. However,

their general descriptions of the incident were corroborated by the deposition of studen t

J.C . , as well as in part by Respondent. As discussed in Florida Administrative Code

R ule 28 - 106.213(3), h earsay evidence may be used to supplement or explain other evidence,

but shall not be sufficient in itself to support a finding unless the evidence falls within an

exception to the hearsay rule as found in s ections 90.801 - .805, Florida Statutes.

13. On October 15, 2019, Respondent was issued the one - day st ay at home

letter from Mr. Aronson titled Ñ Assignment to Your Residence with Pay for

October 15, 2019. Ò On October 15, 2019, Respondent was also issued a letter

advising her that she was assigned to her residence for October 16 and

October 17, 2019.

1 4 . Mr . Fred, under the supervision of Vicki Evans - Par é , Director of

Employee and Labor Relations, comp il ed written statement of six students,

took a written statement of Respondent on October 17, 2019 , and drafted an

Investigative Report dated October 18, 2019 , which substantiated violations

of applicable rules and Board policies.

1 5 . In her statement to Mr. Perez, Respondent claims it was X.S. who put

his hand on hers and pulled the bottle to his own mouth and that she did not

squirt anything. However, the rema inder of her statement is consistent with

the studentsÔ reports of the incident. 2

Post - Investigation Due Proces s

16. On October 30, 2019, Respondent was provided with a Notice of Pre -

Determination Meeting, which provided her with the allegations of

misco nduct . Respondent was provided with a copy of the entire investigative

file and time to review it with the representative of her choice.

1 7 . Respondent attended a Pre - Determination Meeting on November 9,

2019 , to give her the opportunity to provide any add itional information,

dispute, and explain or elaborate on any information contained in the

Investigative R eport.

1 8 . The Employee and Labor Relations (ÑELRÒ) Department enlists the

Employee Investigatory Committee ( Ñ EIC Ò ) which reviews all of ELRÔs case

2 At final hearing, Respondent testified that the bottle was never near the studentÔs mouth .

This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition

testimony, and the statements of the students. This conflict negatively impacted

RespondentÔs credibility.

fi les, inclusive of all documents maintained by ELR, of anything that might

lead to suspension or termination , to make a suggestion to the

Superintendent, if the allegations are substantiated. Once the EIC decides

that the allegations are substantiated and r ecommends discipline, Ms.

Evans - Par é takes the entire employee investigative file, inclusive of the EICÔs

recommendations , to the Superintendent who then makes the ultimate

recommendation for employee discipline.

19. On November 22, 2019, Respondent was pr ovided with supplemental

information to the investigative file and provided an opportunity to respond

to the documents by December 6, 2019.

20. On December 9, 2019, Respondent requested that her response be

placed in her file. She wrote Ñin response to the copies of the information from

the District that is being used as evidence against me ÈÒ after reviewing the

case file , complained that only six of 22 students were interviewed or

provided statements and it was not an ethical, random sample of the class.

Respondent also alleged that the documents had been altered; however, she

did not provide any evidence of such during the final hearing or within the

response.

21. On December 6, 2019, Respondent again provided a response to the

student witness statements to ELR wherein she stated ÑI have 22 students in

my class, only 6 students filled out statements? You have 3 black children

submitted in reporting, of which one is not accurate. Yet, they are the

minority in this class, of which, 2 out of the 6 statements were from Hispanic

students. It is surprising that not a single white student in my class noticed

the incident.Ò

22. On January 24, 2020, Respondent was notified that the

Superintendent would recommend her a ten - day suspension without pay to

the Board at i ts February 19, 2020 , meeting . On February 19, 2020, the

School Board adopted the SuperintendentÔs recommendations to suspend

Respondent without pay for ten days.

RespondentÔs Post - Suspension Status

23. RespondentÔs suspension by the Board was picked up by the

Associated Press and reported across social media and traditional media

platforms locally and nationwide.

24. Ms. Evans - Par é testified that typically, when a teacher is alleged to

have done something inappropriate with students, the District cannot ha ve

the teacher in a classroom around students, so the teacher is reassigned to

another location.

25. Respondent was reassigned to adult and community education, so she

was in a no - student contact position . Respondent was then moved into

H uman R esources F un ding 9920 status due to the press and comments from

the parents received by Principal Aronson and her inability to be returned to

PPMS . This allowed Principal Aronson to hire another teacher to take her

place.

26. Respondent has not been back in the classr oom as a teacher for the

D istrict since October 15, 2019.

C ONCLUSIONS OF L AW

27 . DOAH has jurisdiction over the parties and the subject matter of these

proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2021).

28. This is a discipli nary proceeding in which the Board , in its

Administrative Complaint , seeks to suspend Respondent from h er teaching

position, without pay for ten days , for violating the following:

A. Inappropriate Interactions with Student in

violation of School Board Poli cy 3.02(5)(a)(ii) and

(5)(a)(viii), Code of Ethics, and rule 6A -

10.081(2)(a)( 1 ) and (2)(a)(5), Florida Administrative

Code.

B. Failure to Use Best Professional Judgment in

violation of School Board Policy 3.02(4)(a), (4)(b),

(4)(d), (4)(f), (4)(h), and (4 )(j) , Code of Ethics, and

rule 6A - 10.081(1)(b) and (1)(c), Florida

Administrative Code.

C. Failure to Follow Policy, Rule, or Directive in

violation of School Board Policy 3.10(6), and School

Board Policy 1.013(1)

29 . Respondent is an instructional emplo yee, as that term is defined in

section 1012.01(2). Section 1012.33(1)(a) and (6)(a) authorize s the suspension

and termination of instructional personnel only for Ñjust cause.Ò ÑJust causeÒ

is defined in section 1012.33(1)(a) to include Ñmisconduct in offi ceÒ and Ñgross

insubordination.Ò

30. To suspend RespondentÔs employment, Petitioner must prove that

Respondent committed the acts alleged in the Administrative Complaint;

that those acts violate the laws, rules, and policies cited in the

Administrative Com plaint; and that the violation of these laws, rules, and

policies constitute just cause for h er termination. § 1012.33(1)(a) and (6), Fla.

Stat.

31. Ordinarily, the evidentiary burden in disciplinary proceedings in

which a school board proposes to suspend or terminate instructional

personnel is a Ñpreponderance of the evidence.Ò See, e.g., McNeill v. Pinellas

Cty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cty. , 569 So. 2d 883 (Fla. 3d DCA 1990). However, where, as here, the

Board has agreed through collective bargaining to a more demanding

evidentiary standard, it must act in accordance with the applicable contract.

See Chiles v. United Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1993); Palm

Beach Cty. Sch. Bd. v. Barber , Case No. 15 - 0047 (Fla. DOAH Aug. 31, 2015;

PBCSB Oct. 13, 2015).

32. Article II, section M , of the applicable collective bargaining agreement

(ÑCBAÒ) provides that Ñdisciplinary action may not be taken against an

employee except for just cause, and this mu st be substantiated by clear and

convincing evidence which supports the recommended disciplinary action.Ò

Accordingly, Petitioner has the burden of proof in this proceeding by clear

and convincing evidence.

33. This burden, described in Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983), and later adopted by the Florida Supreme Court in In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), requires the following:

[T]he evidence must be found to be credible; the

facts to which the witnesses testify must b e

distinctly remembered; the testimony must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The

evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

34. Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the context of each

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1985);

McKinney v. Castor , 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

Inappropriate Interaction with Student

35. School Board Polic ies 3.02(5)(a)(ii) and (5) (a)(viii) , Ethical Standards,

Abuse of Students, provide , in pertinent part:

W e are committed to ensuring that employee -

student relationships are positive, professional and

non - exploitative. We will not tolerate improper

employee - student relationships. Eac h employee

should always maintain a professional relationship

with students, both in and outside of the classroom.

Unethical conduct includes but is not limited to È

exposing a student to unnecessary embarrassment

or disparagement.

* * *

Unethica l conduct includes but is not limited to È

engaging in misconduct which affects the health,

safety, and welfare of a student(s) .

36. Rule 6A - 10.081(2)(a)1 . , Principles of Professional Conduct for the

Education Profession, states , in pertinent part , that Ñ Florida educators shall

be guided by the following ethical principles: shall make reasonable effort to

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

studentÔs mental and/or physical health and/or safety.Ò

37. It is undisputed that i n front of his classmates, Respondent told X.S.

that he needed his mouth washed out with soap, proceeded to grab a bottle of

a household cleaning substance, placed the bottle near the studentÔs open

mouth, and that as a result, hand sanitizer was squirted into the studentÔs

mouth. Whether the substance was soap or hand sanitizer does not matter.

RespondentÔs actions exposed X.S. to ridicule among his peers, as well as

serious potential harm if the foreign substance was swallowed.

Failure to Use Best Profes sional Judgment

38. School Board Policy 3.02(4)(a), Accountability and Complian ce , states ,

in pertinent part, Ñeach employee agrees and pledges to provide the best

example possible; striving to demonstrate excellence, integrity and

responsibility in the wo rkplace.Ò School Board Policy 3.02(4)(b), states , in

pertinent part, Ñeach employee agrees and pledges to obey local, state and

national laws, codes and regulations.Ò

39. School Board Policy 3.02(4)(d), states , in pertinent part, Ñeach

employee agrees and pledges to treat all students and individuals with

respect and to strive to be fair in all matters.Ò School Board Policy 3.02(4)(f),

states, in pertinent part, Ñeach employee agrees and pledges to take

responsibility and be accountable for his or her acts or omissions.Ò

40. School Board Policy 3.02(4)(h), states , in pertinent part, Ñeach

employee agrees and pledges to cooperate with others to protect and advance

the District and its students.Ò School Board Policy 3.02(4)(j), states , in

pertinent part, Ñeach employee agrees and pledges to be efficient and effective

in the delivery of all job duties.Ò

41. Rule 6A - 10.081(1)(b) and (1)(c) , Principles of Professional Conduct for

the Education Profession in Florida, state s :

Florida educators shall be guided by the following

ethical principles: the educatorÔs primary

professional concern will always be for the student

and for the development of the studentÔs potential.

The educator will therefore strive for professional

growth and will seek to exercise the best

prof essional judgment and integrity.

* * *

Florida educators shall be guided by the following

ethical principles: aware of the importance of

maintaining the respect and confidence of oneÔs

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.

42. Respondent was aware of her responsibilities to her students and

acknowledged signing the DistrictÔs Code of Conduct.

43. Respondent did not treat X .S. with respect nor was she fair to him in

all manners when she told him in front of the entire class that he needed his

mouth washed out with soap and engaged with X.S. in an inappropriate

manner that resulted in a substance entering his mouth and necess itating

hi s spitting on the floor.

Failure to Follow Policy, Rule, or Directive

44. School Board Policy 3.10(6), Conditions of Employment with the

District, states , in pertinent part , that Ñ[t]he District requires its employees

to carry out their respons ibilities in accordance to School Board Policy 1.013

(as may be amended), their job descriptions and reasonable directives from

their supervisors that do not pose an immediate serious hazard to health and

safety or clearly violate established law or policy .Ò

45. School Board Policy 1.013(1), Responsibilities of School District

Personnel and Staff, states , in pertinent part , that Ñit shall be the

responsibility of the personnel employed by the district school board to carry

out their assigned duties in accor dance with federal laws, rules, state

statutes, state board of education rules, school board policy, superintendentÔs

administrative directives and local school and area rules.Ò

46. Respondent engaged in activity that she should have known violated

School Board policies and was inappropriate. Respondent does not dispute

that she told X.S. that he needed his mouth washed out with soap, grabbed a

bottle from her desk believing it was hand soap, approached X.S. and held the

bottle close to his mouth. A s a resu lt of RespondentÔs actions, X.S. ultimately

had a household cleaning substance enter his mouth, which caused him to

spit on the floor, and go to the restroom to clean his mouth out .

47. As described herein, Petitioner demonstrated clearly and con vincingly

that Respondent committed the violations alleged in the Administrative

Complaint.

Progressive Dis c ipline

48. Respondent, as a teacher, i s covered under the CBA between the

District and the Classroom Teachers Association (ÑCTAÒ) .

49. The CTA CBA has provis ions that allows for the District to skip steps

in progressive discipline when there is a clear danger to the District, an

employee, and/or student, as well as when there are flagrant or purposeful

violations of District rules and policies.

50. Respondent asserts that since s he is a teacher with no prior

disciplinary history in over 12 yearsÔ teaching in the District , the District

erroneously skipped intermediate disciplinary steps such as a verbal or

written warning and a suspension with pay.

51. There is no evidence that the student was, in fact, harmed physically

by the incident. Although the incident could accurately be described as

Ñbattery,Ò neither the student no r his parents or guardian wanted to pursue

criminal charges. The glare of the national med ia spotlight, which occurred

after discipline was imposed by the Board, cannot stand as a basis for

increasing RespondentÔs penalty. Nor should the media scrutiny result in

banning RespondentÔs ability to teach in the classroom forever when the

Board only approved a ten - day suspension without pay.

52. On the other hand, RespondentÔs momentary lapse in judgment is a

flagrant violation of the cited rules and policies and could have led to

significantly more dire consequences if the cleaning substance had been

swallowed or the student had an allergic reaction. As Petitioner aptly points

out, any subsequent similar violation by Respondent could expose Petitioner

to significant liability for negligent retention.

53. Accordingly, just cause exists for disciplining Respondent for the

incident in question and the ten - day suspension without pay is an

appropriate balance between PetitionerÔs previously unblemished

employment history and the potential serious ness of her actions.

R ECOMMENDATION

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

R ECOMMENDED that the Palm Beach County School Board uphold the ten - day

suspension without pay and return Respondent to the classroom.

D ONE A ND E NTERED this 30th day of April , 2021, in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April , 2021 .

C OPIES F URNISHE D :

V. Danielle Williams, Esquire Jean Marie Middleton, Esquire

Palm Beach County School Board Palm Beach County School Board

Office of the General Counsel Office of the General Counsel

3300 Forest Hill Boulevard , Suite C - 331 3300 Forest Hill Boulevard , Suite C - 331

West Palm Beach, Florida 33406 West Palm Beach, Florida 33406

Nicholas Anthony Caggia, Esquire Matthew Mears, General Counsel

Johnson and Caggia Law Group Department of Education

867 West Bloomingdale Aven ue, Suite 6325 Turlington Building, Suite 1244

Brandon, Florida 335 08 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Education Donald E. Fennoy, II, Ed.D.

Department of Education Superintendent

Turlington Building, Suite 1514 Palm Beach County School Board

325 West Gaines Street 3300 Forest Hill Boulevard, Suite C - 316

Tallahassee, Florida 32399 - 0400 West Palm Beach, Florida 33406 - 5869

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.