20-004420PL Richard Corcoran, As Commissioner Of Education vs. Diane N. Tirado Status: Closed Recommended Order on Wednesday, June 23, 2021.

Summary: Petitioner proved, by clear and convincing evidence, that Respondent violated rule 6A-10.081, and, consequently, violated section 1012.795. Recommend one year of probation imposed on Respondent's educator's certificate.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

vs. Case No. 20 - 4420PL

D IANE N. T IRADO ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was held in this case pursuant to sections 120.569 and

120.57(1), Florida Statutes (20 20 ), 1 before Cathy M. Sellers, an

Administrative Law Judge ("ALJ") of the Division of Administrative Hearings

("DOAH") , by Zoom Conference, on February 2 and 3, 2021.

A PPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

1200 Corporate Way, Suite 20 0

Wellington, Florida 33414 - 8594

1 All re ferences to chapter 120 are to the 2020 version.

S TATEMENT OF T HE I SSUE S

Whether Respondent violated the Florida Statutes and Florida

Administrative Code r ule s , as charged in the Amended Administrative

Complaint, and if so, the penalty that should be imposed.

P RELIMINARY S TATEMENT

On or about August 27, 2020 , Petitioner, Richard Corcoran, as

Commissioner of Education, issued an Amended Administrative Complaint

("Complaint") charging Respondent, Diane N. Tirado, with having violated

Florida Administrative Code Rule 6A - 10.081 , and proposing to sanction

Respondent's educator's certificat e, pursuant to sections 1012.795 and

1012.796, Florida Statutes (2018). 2 Respondent previously had filed an

election of rights requesting a formal administrative hearing. 3 The fin al

hearing originally was scheduled for December 4, 2020, but pursuant to

motion, was continued to February 2 and 3 , 2021.

The final hearing was held on February 2 and 3, 2021. Petitioner

presented the testimony of Aaron Clements ; Jermaine Jones; and stu dents

E.J., J.P., G.C., J.K., and A.S. Petitioner's Exhibit Nos. 1, 3, 4, 10 through 14,

14A, and 15 through 21 were admitted into evidence over objection.

2 Respondent's conduct that is alleged to violate r ule 6A - 1 0.081 took place in August 2018.

The 2018 version of chapter 1012 was in effect at the time of the alleged conduct , and ,

therefore , applies to this proceeding. See c h. 2018 - 150, §§ 12, 15, at 16 - 18, 22, Laws of Fla.

The version of rule 6A - 10.081 adopted on March 23, 2016 , was in effect at the time of the

alleged violations , and , therefore , appl ies to this proceeding. See Orasan v. Ag. for Health

Car e Admin., 668 S o . 2d 1062, 1063 (Fla. 1st DCA 1996)(law in effect at time of alleged

violations applies in disciplinary proceeding s).

3 Petitioner previously filed an administrative complaint against Respondent in Case No.

20 - 0998 PL , and Respondent filed an E lection of R ights requesting an administrative hearing.

That case was dismissed without prejudice for Petitioner to request to reopen the case at

DOAH. On October 2, 2020, Petitioner filed an Unopposed Motion to Re - Open file, which was

granted , giving rise to this proceeding.

Respondent testified on her own behalf and presented the testimony of

student K.K. Respondent's Ex hibit No. 9 was admitted into evidence without

objection.

The three - volume Transcript was filed at DOAH on March 2, 2021.

Pursuant to the parties' agreement, the deadline for filing proposed

recommended orders was extended to March 22, 2021. The parties t imely

filed their Proposed Recommended Orders ("PROs") on March 22, 2021 . B oth

PROs have been duly considered in preparing this Recommended Order.

F INDINGS OF F ACT

The Parties

1. Petitioner, the Commissioner of Education, is responsible for

determining w hether there is probable cause to warrant disciplinary action

against an educator's certificate and, if probable cause is found, for filing and

prosecuting an administrative complaint pursuant to chapter 120.

2. Respondent holds Florida Educator's Certifi cate No. 803275, valid

through June 30, 202 1 , covering the areas of e lementary e ducation,

e xceptional s tudent e ducation, m iddle g rades i ntegrated c urriculum, and

s ocial s cience.

3. At the time of the final hearing in this proceeding, Respondent had

taught for approximately 17 years.

The Complaint

4. The C omplaint alleges that Respondent spoke ill of student E.J.'s work

on an assignment in front of the whole class, including, but not limited to,

calling it pathetic. As a result, E.J. was embarrassed.

5. Ad ditionally, the Complaint alleges that Respondent spoke ill of

student A.S.'s work on an assignment in front of the whole class, including,

but not limited to, calling it pathetic. As a result, A.S. was embarrassed.

6. The Complaint also alleges that Resp ondent criticized student J.P.'s

work on an assignment, including, but not limited to, saying he had not put

any work into it.

7. As a result of this alleged conduct, the Complaint charges Respondent

with having violated section 1012.795(1)(j), and rules 6A - 10.081(2)(a)1. and

6A - 10.081(2)(a)5.

Evidence Adduced at the Final Hearing

8. Respondent began teaching in the St. Lucie County School District

("District") on A ugust 1, 2016.

9. At the time of Respondent's conduct that is alleged to violate section

1012.795 and rule 6A - 10.081, Respondent was employed as an eighth grade

social studies teacher at West Gate K - 8 School ("West Gate"), in the District.

10 . The 2018 - 2019 school year for the District began on August 13, 2018.

1 1 . September 14, 2018, was Re spondent's last day of employment with

the District.

1 2 . The alleged conduct giving rise to this proceeding occurred at some

point between August 13, 2018 , and September 14, 2018. On or about

September 14, 2018, the District initiated an investigation int o Respondent's

conduct while she had been employed at West Gate.

1 3 . E.J. was a student in Respondent's eighth grade history class.

Respondent assigned the students to complete a history project. After E.J.

turned in his project , Respondent called him up t o her desk and told him , in

the front of the class, that his work on the project was " lazy " and "pathetic."

Oth er students in the class saw Respondent's conduct and heard her

comments to E.J.

1 4 . E.J. testified, credibly and persuasively , that he was emba rrassed and

hurt by Respondent's comments, and that he went back to his desk in tears.

1 5 . The credible evidence establishes that after seeing E.J.'s reaction to

her comments, Respondent called E.J. outside of the classroom and

apologized .

1 6 . Respondent testified, credibly, that she felt "terrible" about making

E.J. cry, and that she had made the comments because she was frustrated

with the quality of the students' work on the project .

1 7 . E.J.'s father, Jermaine Jones, who had picked him up from school on

the day of the incident , confirmed that E.J. was upset by Respondent's

comments on his project .

18. Jones immediately set up a meeting with A ssistant P rincipal Guzman

and Respondent for the following day. At that meeting, Respondent

apologized to E.J. 's parents and said she was having a stressful day when she

made the comments to E.J.

1 9 . According to Jones, the incident made E.J. Ð who normally is quiet Ð

further withdrawn , and he became , in Jones' s words, " a little depressed. "

According to Jones, f ollowi ng the incident, E.J. did not want to go to

Respondent's class.

20 . Other student witnesses testified at the final hearing , credibly and

consistently, that they saw and heard Respondent's comments directed at

E.J., and that E.J. was upset by her comments and started to cry .

21 . Another student, J.P., testified that he had been unable to complete

the project for Respondent's class because his grandfather was ill and had

been hospitalized, and that he and his family had been spending time at the

hospital. J .P. took a note from his mother, to Respondent, on the day the

project was due , explaining the reason why J.P. had been unable to complete

his project. J.P. testified, credibly, that Respondent told him , in front of the

class, that she really did not care about the note, and if he did not turn in the

completed project by the following da y, he would receive a grade of "zero . "

J.P. credibly testified that other students in the class heard Respondent's

comments to hi m, and that he was "very shocked" and felt " very

embarrassed." J.P. did not turn in a project.

2 2 . Student A.S. testified, credibly, that Respondent told him that his

work on the project was unacceptable and " pathetic. " Respondent made these

comments in front of the entire class. A.S. testified, cre dibly, that he felt

"very embarrassed and upset." He testified, credibly, that Respondent did not

apologize to him.

2 3 . Respondent testified on her own behalf. She acknowledged calling

E .J.'s work "lazy" and "pathetic , " but testified that she had not inte nded to

hurt his feelings , and when she realized that she had, she "felt terrible about

it." She acknowledged that she has "a deep voice, and I come off harsher than

I mean to."

2 4 . She called E.J. outside to explain that she had not intended to hurt his

feelings, and there would be other opportunities to make up the bad grade he

received on the project. She testified that as a result of their talk, E.J. calmed

down , and that she did not have any further issues with him in class.

2 5 . She confirmed that o n the day following the incident with E.J., she

met with E.J.'s parents to discuss the incident . She testified that the meeting

was "civil , " and that she left the meeting feeling like " it was taken care of."

2 6 . Regarding the incident with J.P., Responden t testified that the

students had two weeks in which to complete the project, and that when J.P.

approached her with the note regarding his grandfather's illness, she told

him to turn in, the following day, what he had completed to that point . She

confirme d that J.P. did not turn in a project. She also testified that she did

not hear from J.P.'s mother regarding the project.

2 7 . Regarding student A.S. , Respondent testified that she did not call his

work "pathetic," and that, given E.J.'s reaction, she would not have used that

word again. 4

2 8 . Respondent also presented the testimony of K.K., who also had been a

4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the

same project, and that E.J. and A.S. had turned the project in on the same day. Thus, t he

undersigned questions whether Respondent woul d have had sufficient time to reflect on the

effect that the word "pathetic" had on E.J. , such that she would not have use d that word in

speaking with A.S. on the same day .

student in Respondent's eighth grade history class in the 2018 - 2019 school

year. K.K. testified that Respondent discussed E.J.'s paper with the clas s

because it was a good paper, and that she did not see anyone cry in

Respondent's class. She also testified that Respondent did not speak in

negative terms about anyone's project in front of the class .

2 9 . However, K.K.'s testimony and written statement are directly

contradicted by the testimony of four other students , as well as by E.J.'s

father and Respondent herself, who admitted having called E.J.'s work on the

project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s

testimony and stat ement are not deemed credible.

30 . Respondent has been a teacher for 17 years. She testified that her

educator's certificate has nev er been subjected to discipline, and n o evidence

was presented showing that disciplinary action has ever been taken against

her educator's certificate .

Findings of Ultimate Fact

3 1 . Based on the foregoing, it is determined that P etitioner proved, by

clear and convincing evidence, that Respondent engaged in the conduct

alleged in the Complaint.

3 2 . W hether particular conduct constitutes a violation of the applicable

statutes and rules is a factual question to be decided in the context of the

alleged violation. Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA

1995) . Whether specific conduct constitutes a deviation from t he required

standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150,

153 (Fla. 1st DCA 1985) .

3 3 . R ule 6A - 10.081(2)(a)1., of the Principles of Professional Conduct for

the Education Profession in Florida , requires a teacher to make r easonable

effort to protect a student from conditions harmful to learning and to the

student's mental health. I t is determined that by disparaging E.J.'s work in

front of the entire class Ð which caused him to suffer distress , with draw , and

avoid going to Re spondent's class Ð Respondent violated this rule.

3 4 . Rule 6A - 10.081(2)(a)5., of the Principles of Professional Conduct for

the Education Profession in Florida , requires a teacher to avoid intentionally

exposing a student to unnecessary embarrassment or d isparagement. As

found above, Respondent intentionally engaged in conduct that resulted in

unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is

determined that Respondent violated this rule.

3 5 . By violating the Principles of Pro fessional Conduct for the Education

Profession in Florida , Respondent violated section 1012.795(1)(j) .

C ONCLUSIONS OF L AW

3 6 . DOAH has jurisdiction over the subject matter of, and the parties to,

this proceeding, pursuant to sections 120.569 and 120.57(1) .

3 7 . This is a proceeding to impose disciplinary sanctions on Respondent's

educator certificate. Because this disciplinary proceeding is penal in nature,

Petitioner is required to prove the allegations in the Complaint by clear and

convincing evidence. De p't of Banking & Fin. v. Osborne Stern & Co. , 670 So.

2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

3 8 . Clear and convincing evidence "requires more proof than a

'preponderance of the evidence' but less than 'beyond and to the exclu sion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). As stated

by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be d istinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts in issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth o f the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983)). " Although this standard of proof may be

met whe re the evidence is in conflict . . . . it seems to preclude evidence that

is ambiguous. " Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2 d 986, 989

(Fla. 1991).

3 9 . This proceeding is predicated on the allegations set forth in the

Complaint filed with DOAH on October 6, 2020 . Due process prohibits

Petitioner from taking disciplinary action based on matters not specifically

alleged in the charging instrument. See Trevisani v. Dep't of Health , 908 So.

2d 1108, 1 1 09 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 199 6).

40 . As set forth above, the Complaint charges Respondent with having

violated rules 6A - 10.081(2)(a)1. and 6A - 10.081(2)( a)5., and, consequently,

section 1012.795(1)(j).

4 1 . Section 1012.795(1)(j) states, in pertinent part: " (1) [t] he Education

Practi ces Commission may . . . impose any other penalty provided by law, if

the person: . . . (j) [h] as violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education rules. "

4 2 . The Principles of Professiona l Conduct for the Education Profession in

Florida are codified in rule 6A - 10.081.

4 3 . Rule 6A - 10.081(2)(a) states, in pertinent part:

Florida educators shall comply with the following

disciplinary principles. Violation of any of these

principles shall s ubject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from co nditions harmful to learning and/or

to the student's mental and/or physical health and

safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

4 4 . For the reasons discussed above, it is conclud ed that Respondent

violated rules 6A - 10.081(2)(a)1. and 5., and, accordingly, violated section

1012.795(1)(j).

4 5 . Florida Administrative Code Rule 6B - 11.007 establishes the guidelines

for determining the appropriate penalty to be imposed on a person wh o has

committed an act for which the Education Practices Commission may impose

discipline. 5

4 6 . Purs uant to rule 6B - 11.007(2)(j)1., the penalty for having vi o lated rule

6A - 10.081(2)(a)1. ranges from reprimand to revocation of an educator's

certificate.

4 7 . Pursuant to rule 6B - 11.007 (2) (j)5., the penalty for having violated rule

6A - 10.081(2)(a)5. ranges from reprimand to revocation of an educator's

certificate .

4 8 . Rule 6B - 11.007 (3) provides for the consideration of aggravating and

mitigating factors in de termining the app ropriate penalty to be imposed. This

rule states, in pertinent part:

The Commission may consider the following as

aggravating or mitigating factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repet itions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has been

previously disciplined by the Commission;

5 The version of rule 6B - 11.007 that was adopted on May 29, 2018 , was in effect at the time

of the violations giving rise to this proceeding, and, therefore, applies to this proceeding.

(f) The length of time the educator has practiced

and the contribution as an educator;

(g) The actua l damage, physical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalty imposed;

(i) The effect of the penalty upon the educatorÔs

livelihood;

* * *

(k) The actual knowledge of the educator pertaining

to the violation;

* * *

(m) Attempts by the educator to correct or stop the

violation or refusal by the educator to correct or

stop the violation;

* * *

(q) Pecuniary benefit or self - gain inuring to the

educator;

(r) Degree of physical and mental harm to a

student or a child; . . . .

4 9 . Based on the foregoing, it is determined that Respondent's offense was

severe. She intentionally disparaged students ' work in front of the class ,

causing them to suffer distress and embarrassment , and causing one stude nt

to experience lasting negative effect s . Although Respondent claims not to

have intended to upset or embarrass the students, she is an experienced

teacher who knew , or should have known, not to make disparaging comments

to students in front of others.

5 0. However, there are certain mitigating factors that must be considered

in determining the penalty to be imposed on Respondent 's educator's

certificate . Specifically, Respondent's conduct did not pose a danger to the

public , and she did not experience any pecuniary benefit as a result of her

actions . Additionally, while she engaged in three discrete acts that violated

rule 6A - 10.081(2)(a)1. and 5., she did so during the same class period project.

No evidence was presented that she subsequently engaged in s uch conduct.

51. Additionally, the evidence establishes that Respondent has been a

certified teacher for 17 years, and no disciplinary action has been taken

against her certificate during that period.

52. Based on consideration of the relevant factors in rule 6B - 11.007(3), it

is concluded that plac ing Respondent 's educator's certificate on probation for

one calendar year from the date the final order is entered in this proceeding

is an appropriate penalty . This penalty recognizes the seriousness of

Respon dent's offenses, but takes into account that no disciplinary action

previously has been taken against her educator's certificate.

R ECOMMENDATION

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

R ECOMMENDED that the Education Practic es Commission enter a Final Order

placing Respondent's educator's certificate on probation for a period of one

year from the date of the Final Order .

D ONE A ND E NTERED this 23rd day of June, 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

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 23rd day of June , 2021 .

C OPIES F URNISHED :

Ron Weaver, Esquire Diane Tirado

Pos t Office Box 770088 3502 Southwest Vollmer Street

Ocala, Florida 34477 - 0088 Port St. Lucie, Florida 34953

Matthew Mears, General Counsel Mark S. Wilensky, Esquire

Department of Education Dubiner & Wilensky, LLC

Turlington Building, Suite 1244 1200 Corpor ate Center Way, Suite 200

325 West Gaines Street Wellington, Florida 33414 - 8594

Tallahassee, Florida 32399 - 0400

Lisa Forbess, Exec utive Dir ector

Randy Kosec, Jr., Chief Education Practices Commission

Office of Professional Department of Education

Practices Se rvices Turlington Building, Suite 316

Department of Education 325 West Gaines Street

Turlington Building, Suite 224 - E Tallahassee, Florida 32399 - 0400

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.