20-004682 Miami-Dade County School Board vs. Blanca L. Gonzalez Status: Closed Recommended Order on Tuesday, February 23, 2021.

Summary: Petitioner established just cause to discipline Respondent.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 4682

B LANCA L. G ONZALEZ ,

Respondent .

/

R ECOMMENDED O R DER

Pursuant to notice, a hearing was conducted in this case by video

conference via Zoom on December 17, 2020, before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Michele Lara Jones, E squire

School Board of Miami - Dade County, Florida

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1526

S TATEMENT OF T HE I SSUE

Whether just cause exists to sustain Responde ntÔs five - day suspension

from employment without pay with Petitioner based on the allegations in the

Amended Notice of Specific Charges.

P RELIMINARY S TATEMENT

By letter dated September 10, 2020, the Miami - Dade County School Board

(ÑPetitioner , Ò ÑSchool B oard , Ò or ÑDistrictÒ) notified Blanca Gonzalez

(ÑRespondentÒ or ÑGonzalezÒ) that on September 9, 2020, the School Board

took action to suspend her without pay for five workdays.

On or about September 11, 2020, Respondent timely elected to dispute the

rea sons for the suspension and requested a hearing.

On October 20, 2020, the matter was referred to the Division of

Administrative Hearings (ÑDOAHÒ). The matter was assigned to the

undersigned administrative law judge.

On November 17, 2020, Petitioner filed its Notice of Specific Charges

setting forth the factual and legal grounds for the proposed discipline.

On December 15, 2020, Petitioner filed its Amended Notice of Specific

Charges.

The hearing proceeded as scheduled on December 17, 2020.

At hearing, Petitioner stipulated to proceed on the Amended Notice of

Specific Charges. Petitioner presented the testimony of four witnesses:

Maria G. Zabala; Janelle Fernandez - Ramos; Barbara Soler; and Damaris

Medina. PetitionerÔs Exhibits 1 through 11 were admitted into evidence.

Respondent testified on her own behalf , and one exhibit was admitted into

evidence.

At the close of the hearing, the parties stipulated that the proposed

recommended orders would be due ten days after the filing of the transcript.

The Tra nscript of the final hearing was filed with DOAH on February 2,

2021. Both parties timely filed proposed recommended orders, which have

been considered in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to t he 2019 Florida

Statutes version, which was in effect at the time of the alleged misconduct at

issue in this proceeding.

F INDINGS OF F ACT

1. Petitioner is a duly - constituted district school board charged with the

duty to operate, control, and supervise al l free public schools within Miami -

Dade County , Florida. Article IX, § 4(b), Fla. Const.

2. Gonzalez started volunteering for the School Board approximately

22 years ago. Eventually, after years of volunteering, Gonzalez was offered a

paraprofessional posi tion.

3. Gonzalez worked as a paraprofessional at Sylvania Heights Elementary

School (ÑSylvaniaÒ) for the last seven years.

4. During the 2018 - 2019 school year, Gonzalez was a pre - kindergarten

paraprofessional at Sylvania.

5. GonzalezÔs job duties and re sponsibilities include , but are not limited to ,

assisting with the children when needed.

6. At all times relevant to the proceeding, Respondent has been employed

by the School Board pursuant to a collective bargaining agreement under the

United Teachers of Dade (ÑUTDÒ ) .

7. The incident giving rise to this proceeding occurred August 22, 2019.

8. On August 22, 2019, Gonzalez reported to work early around 7:00 a.m.

and went to the Sylvania office to help. She was assigned to morning drop - off

duty and instructe d to assist the parents and students in the drop - off area.

9. That morning, Gonzalez went to pick up pre - kindergarten children at

the north entrance of the school.

10. One pre - kindergarten student was upset and crying when his mother

dropped him off at the car line. The student continued to cry as he got out of

the car. Gonzalez walked the crying student to drop - off classroom number

four, after he got out of the car.

11. As Gonzalez walked the crying student to the classroom, the child

continued to cry a l ot.

12. Gonzalez dropped off the crying student by forcibly placing him into

classroom four with a push, and then continuing to go on to assist with

another child.

13. During the drop - off period, Janelle Fernandez - Ramos (ÑFernandez -

RamosÒ), a Sylvania te acher, was in front of classroom twelve looking down

the hall and saw Gonzalez drop off the child a t classroom four. Fernandez -

Ramos believes she saw Gonzalez tug the child by the arm. At the time, she

shouted to Gonzalez , ÑdonÔt push him , Ò but Gonzalez di d not hear her.

14. That same morning, Barbara Soler (ÑSolerÒ), a Sylvania teacher, was

standing in the middle of the interior hallway with Gonzalez. Soler was

turned away and a foot away from GonzalezÔs left when she placed the crying

child in classroom four. Soler heard Fernandez - Ramos scream ÑdonÔt push

him,Ò and looked right to see the little boy crying standing in the doorway of

classroom four. Soler did not see anything happen between Respondent and

the little boy. Soler took the crying student to th e end of the hallway.

15. At the time Gonzalez dropped off the student, Damaris Medina

(ÑMedinaÒ) was in the classroom where the crying boy was dropped off. She

stood approximately seven feet away facing Gonzalez. Medina clearly

observed Gonzalez forcefull y shove the crying student into her classroom , and

Medina watched Gonzalez proceed on immediately after dropping him off.

16. Later that day, Fernandez - Ramos reported to administration that she

thought she saw a pushing incident between Gonzalez and a chi ld.

17. Afterwards, P rincipal Amor Reyes (ÑReyesÒ) called Gonzalez to the

office. Reyes informed Gonzalez that it had been reported that Gonzalez had

pushed a child. Gonzalez denied the allegations.

Hearing

18. At the final hearing, Gonzalez admitted lea ving the crying student in

drop - off classroom number four and explained that she left immediately

thereafter because she needed to continue helping with another child.

Gonzalez credibly testified , ÑI did nothing.Ò She explained that she was

neither frustra ted n or upset that day and did not hear Fernandez - Ramos

scream at her.

19. Fernandez - Ramos testified that Gonzalez Ñtugged the child from the

arm into the room.Ò Fernandez - Ramos explained that it was the beginning of

the school day , and it was chaotic in t he hallway. She also described the

layout and explained that between where she was standing in front of

classroom twelve and drop - off classroom four , there was a bathroom and two

more classrooms. Fernandez - Ramos testified that she was n o t sure if she saw

G onzalez push the child because ÑI was further away; I wasnÔt sure if thatÔs

what I really saw.Ò

20. Medina credibly confirmed and testified that Gonzalez shoved the

crying boy into the classroom. Medina testified that her response to the

incident was to lo ok back at another teacher to see if she saw it. Medina also

explained that she believed Gonzalez was either flustered or frustrated.

Medina further testified , ÑI just think that she didnÔt realize maybe the force

that she used.Ò She also testified that th e student did not fall and was not

injured. She further clarified that once the crying student was in the room ,

Gonzalez kept going to grab another student. Medina repeated at hearing, ÑI

donÔt think she realized it.Ò

21. Respondent has not been the subjec t of any prior disciplinary action

during her employment by the School Board.

C ONCLUSIONS OF L AW

22 . DOAH has jurisdiction over the subject matter of, and parties to, this

case, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020).

23. Thi s is a disciplinary proceeding in which Petitioner seeks to suspend

Respondent from her employment, without pay, for five workdays.

24. Petitioner has the burden of proving that it has Ñjust causeÒ to suspend

Respondent's employment as a paraprofessional.

25. "Just Cause" is defined to include misconduct in office by s ection

1012.33(1)(a), Florida Statutes.

26. Petitioner's burden to prove the charges in the Amended Notice of

Specific Charges against Respondent must be met by a preponderance of the

evidenc e. 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).

27. In the Amended Notice of Specific Charges filed against Respondent in

this proceeding, the School Board cha rged Respondent with violation of

several provisions within the School BoardÔs policies. The School Board

alleges generally that Respondent pushed and/or struck a student in the

classroom during morning drop - off time.

Misconduct in Office

28. Petitioner al leges Respondent committed m isconduct in o ffice as

Count I in the Amended Notice of Specific Charges.

29. The State Board of Education has defined the term "Misconduct in

Office" by Florida Administrative Code Rule 6A - 5.056(2), which provides, in

relevant part:

(2) ÑMisconduct in OfficeÒ means one or more of the

following:

* * *

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Florida

[ Ñ Principles of Conduct Ò ] as adopted in Rule 6A -

10.081, F.A.C.;

(c) A v iolation of the adopted school board rules;

(d) Behavior that disrupts the studentÔs learning

environment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties.

Principles of Professional C onduct

30. Florida Administrative Code Rule 6A - 10.081, Principles of Conduct,

sets the standards of conduct and provides, in relevant part:

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and di gnity of

every person, the pursuit of truth, devotion to

excellence, acquisition of knowledge, and the

nurture of democratic citizenship. Essential to the

achievement of these standards are the freedom to

learn and to teach and the guarantee of equal

oppor tunity for all.

(b) 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 professional j udgment and

integrity.

(c) 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 con duct.

* * *

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educatorÔs certificate, or the other penalt ies as

provided by law.

(a) Obligation to the student requires that the

individual:

1. 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.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

6. Shall not intentionally violate or deny a studentÔs

legal rights.

31. Petitioner proved by the preponderance of the evidence that

Respondent committed M is conduct in O ffice by violating one of the Principles

of Conduct , rule 6A - 10.081(2)(a)1 . , which requires that Respondent Ñmake

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 Instead

of protecting the student, Respondent placed the studentÔs health and safety

at harm by pushing him in violation of rule 6A - 10.081(2)(a)1., above.

Therefore, Petitioner has proven that Respondent violated rule 6A - 5.056(2),

Miscondu ct in Office.

School Board Policy 4210

32. School Board Policy 4210, Standards of Ethical Conduct, establishes

PetitionerÔs standards of employee conduct and provides, in relevant part:

All employees are representatives of the District

and shall conduct t hemselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and the

school system.

A. A support staff member shall:

* * *

3. Make a reasonable effort to protect the student

from conditions harm ful to learning and/or to the

studentÔs mental and/or physical health and/or

safety.

* * *

7. Not intentionally expose a student to

unnecessary embarrassment or disparagement.

8. Not intentionally violate or deny a studentÔs legal

rights;

* * *

21. not use abusive and/or profane language or

display unseemly conduct in the workplace.

33. Petitioner proved that Respondent violated School Board Policy 4210

by demonstrating Respondent created a harmful situation exposing the

studentÔs phys ical health and safety when Respondent pushed the student.

School Board Policy 4210.01

34. School Board Policy 4210.01, Code of Ethics, applies to all employees

of the District and provides, in relevant part:

Fundamental Principles

The fundamental princ iples upon which the Code of

Ethics is predicated are as follows:

* * *

E. Integrity Ï Standing up for their beliefs about

what is right and what is wrong and resisting

social pressures to do wrong.

F. Kindness Ï Being sympathetic, helpful,

co mpassionate, benevolent, agreeable, and gentle

toward people and other living things.

* * *

H. Respect Ï Showing regard for the worth and

dignity of someone or something, being courteous

and polite, and judging all people on their merits. It

tak es 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 actions.

* * *

G. To cooperate with others to protect and advance

the District and its students.

Conduct Regarding Studen ts

Each employee:

A. 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;

* * *

E. shall not intentionally expose a student to

unnecessar y embarrassment or disparagement ;

F. shall not intentionally violate or deny a studentÔs

legal rights.

35. Respondent violated School Board Policy 4210.01 by not adhering to

the fundamental principles. By Respondent pushing a student, she failed to

act kindly or gently and lacked professional responsibility in violation of the

pledge and principles.

School Board Policy 4213

36. Petitioner also met its burden and demonstrated that Respondent

violated School Board Policy 4213, Student Supervision and Welf are, which

provides, in relevant part:

Protecting the physical and emotional well - being of

students is of paramount importance. Each support

staff member shall maintain the highest

professional, moral and ethical standards in

dealing with the supervision, control, and

protection of students on or off school property.

37. As detailed above, RespondentÔs actions of forcibly placing the student

in the drop - off classroom, even if it occurred as a nonintentional push, is an

endangerment to the studentÔs physica l well - being. Therefore, RespondentÔs

actions failed to protect the studentÔs physical well - being in violation of

School Board Policy 4213.

38. By Respondent violating School Board Policies 4210, 4210.01,

and 4213, Respondent also violates rule 6A - 5.056(2) (c), Misconduct in Office.

Discipline

39. As to the appropriate discipline for RespondentÔs violations, the

Progressive Discipline Policy set forth in Article XXI of the UTD Contract,

Employee Rights and Due Process, section 1, Due Process, paragraph A.1.,

states, in pertinent part:

The [Miami - Dade County School] Board and Union

recognize the principle of progressive discipline.

The parties agree that disciplinary action may be

consistent with the concept of progressive discipline

when the Board deems it ap propriate, and that the

degree of discipline shall be reasonably related to

the seriousness of the offense.

40. The record establishes that Respondent has never been disciplined

during her 22 years with the School Board. Moreover, in the case at issue,

th ere is no direct credible evidence demonstrating that GonzalezÔs actions

were purposeful or that the student fell or was injured. As such, the record

does not establish that such conduct is sufficiently serious to warrant a

suspension Ð much less a five - day suspension. Given that Respondent has not

previously been subject to discipline by Petitioner, suspending Respondent

for this conduct is not reasonably related to the seriousness of the offense;

rather, a reprimand is a reasonable penalty under the circums tances.

Therefore, it is determined that, consistent with the concept of progressive

discipline, Petitioner should issue a reprimand to Respondent for her

conduct.

R ECOMMENDATION

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

Recomm ended that Miami - Dade County School Board enter a final order

issuing a reprimand to Respondent and awarding Respondent back pay for

five workdays.

D ONE A ND E NTERED this 2 3r d day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

J UNE C. M CKINN EY

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 2 3r d day of February , 2021 .

C OPIES F URNISHED :

Michele Lara Jones , Esquire Mark Herdman, Esquire

School Board of Miami - Dade County, Florida Herdman & Sakellarides, P.A.

1450 Northeast Seco nd Avenue , Suite 430 29605 U.S. Highway 19 North , Suite 110

Miami, Florida 33132 Clearwater, Florida 33761 - 1526

Matthew Mears, General Counsel Alberto M. Carvalho, Superintendent

Department of Education Miami - Dade County School Board

Turlington Building, Suite 1244 1450 Northeast Second Avenue, Suite 912

325 West Gaines Street Miami, Flor ida 33132

Tallahassee, Florida 32399 - 0 400

(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.