20-005135TTS Miami-Dade County School Board vs. Ana B. Alvarez Status: Closed Recommended Order on Friday, May 28, 2021.

Summary: The School Board did not prove that a P.E. teacher committed the violations alleged in the Notice of Specific Charges, and her conduct on the field to control, manage, and correct several young students did not constitute a breach of her ethical duties.

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 - 5135TTS

A NA B. A LVAREZ ,

Respondent .

/

R ECOMMENDED O RD ER

This case was heard by Administrative Law Judge (ÑALJÒ) Robert L.

Kilbride, of the Division of Administrative Hearings (ÑDOAHÒ) , on

February 26, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade Cou nty School Board

1450 Northeast 2nd Avenue , Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esq uire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 N orth , Suite 110

Clearwater, FL 33761 - 1526

S TATEMENT OF T H E I SSUE

Whether just cause exists to uphold the 30 - day unpaid suspension of

Ana B. Alvarez (ÑRespondentÒ) from the Miami - Dade County School Board

(ÑSchool BoardÒ or ÑPetitionerÒ) for her actions outlined in PetitionerÔs Notice

of Specific Charges filed Dec ember 17, 2020.

P RELIMINARY S TATEMENT

On November 18, 2020, Petitioner took employment action to suspend

Respondent for 30 days without pay.

Taking exception to this decision, Respondent requested a hearing

pursuant to s ections 120.569 and 120.57(1), Fl orida Statutes, and the matter

was referred to DOAH to conduct an evidentiary hearing.

On December 17, 2020, Petitioner filed a Notice of Specific Charges , as

ordered by the undersigned , outlining the facts against Respondent in more

detail.

The f inal h e aring was initially scheduled for January 4, 2021. The

undersigned granted a motion to continue and the f inal h earing was

rescheduled for February 26, 2021.

At the final hearing , Petitioner presented the testimony of Principal

Tiffany Anderson ; Office of Professional Services Director Helen Pina ; and

students, J.F. , S.C. , S.J. , and I.S. PetitionerÔs E xhibits 1 through 12 were

admitted into evidence.

Respondent testified on her own behalf and offered the testimony of two

teachers , Hector Reyes and Melissa Yen. Respondent offered one exhibit ,

which was admitted into evidence.

The T ranscript of the hearing was filed on April 30, 2021. The

undersigned granted a Motion for Extension of Time to File Proposed

Recommended Orders, and the parties timely filed thei r respective proposed

recommended orders on May 17, 2021.

The proposed recommended orders were reviewed and considered by the

undersigned in the preparation of this Recommended Order. All references to

statutes, rules , or policies are to those in effect wh en the action, omission , or

conduct occurred.

F INDINGS OF F ACT

The undersigned makes the following findings of material and relevant

fact:

S TIPULATION O F T HE P ARTIES

1. At all times relevant to this case, Petitioner was a duly constituted

School Board ch arged with the duty to operate, control, and supervise all free

public schools within the school district of Miami - Dade County, Florida,

pursuant to Article I X, section 4(b) of the Florida Constitution, and

s ection 1012.23 , Florida Statutes.

2. At all time s material hereto, Respondent was employed pursuant to a

professional service contract at Gateway Environmental K - 8 Learning Center

(ÑGateway ElementaryÒ) , a public school in Miami - Dade County, Florid a.

3. At all times material hereto, RespondentÔs employm ent was governed

by the collective bargaining agreement (ÑCBAÒ) between Miami - Dade County

Public Schools and the United Teachers of Dade, the policies of the School

Board, and Florida law.

F ACTS E STABLISHED A T T HE H EARING

4. At the time of these events, Re spondent, Alvarez, had been a physical

education teacher for approximately 17 years. She had been at Gateway

Elementary since 2011.

5. There were several incidents involving Respondent outlined by

Petitioner in its Notice of Specific Charges, each of which are addressed

below.

November 2018 Incident

6. In paragraph 14 of the Notice of Specific Charges , Petitioner alleges:

ÑOn or about November 9, 2018 Respondent pushed a female student while

stating, Óget out of my wayÔ. Ò The incident involved student I.S. , a young

student at Gateway Elementary.

7. As background, when students leave their classrooms to go to physical

education classes , they are required to line - up first on the side of the

walkway, so the P.E. teacher can take attendance.

8. On November 9, 2018 , the students were lined up as usual and

Respondent was taking attendance. I.S. testified that the walkway at this

location was approximately three to four feet wide, and there were two lines

of students from separate classes lined up on either side o f the walkway.

9. As Respondent was walking down the lines taking attendance , she

brushed up against I.S. who was standing Ñout a little bitÒ or slightly outside

the line of students.

10. According to I.S., Respondent did not use her hands to push her, b ut

rather RespondentÔs shoulder brushed against hers as she walked past. The

force of the ÑbrushingÒ did not cause I.S. to lose her balance. As Respondent

passed and brushed her, I.S. moved to the side on her own.

11. Respondent had no specific recollect ion of this incident, but then

denied that she would have ever improperly pushed I.S. or any other student.

(ÑNo, never happened . Ò)

12. This incident did not involve Respondent shoving or intentionally

pushing I.S. in an angry or malicious way. It was a slight to moderate

brushing of I.S.Ôs body by Respondent on a crowded, narrow , and hectic

walkway.

13. Later in the class period , I.S., and others who were late, were required

by Respondent to sit down on the field because of their tardy behavior. It was

I .S.Ôs belief she was required to sit on or near ants. That upset I.S., and she

reported it to the Principal.

14. However, there was no evidence to show that Respondent knowingly

or intentionally chose to have I.S. sit in an area with an active ant pile. 1

15. From these facts and their reasonable inferences, Respondent

inadvertently brushed against I.S. on the crowded and hectic walkway. Given

the close proximity of the students and the teacher to one another on the

walkway, such an encounter would not be unexpected. Respondent did not

push I.S. as alleged.

February 2019 Incident

16. In paragraph 15 of the Notice of Specific Charges , the School Board

alleges;

On or about February 11, 2019 a group of female

students in RespondentÔs class were harassed,

pushe d and hit by several male students. The

female students reported this to the Respondent

and she took no corrective action and failed to

document the incident.

17. Two female students, S.C. and S.J., testified about the incident.

18. According to S.C. , t he class was on the P.E. field and the boys were

bothering the girls. She didnÔt recall if she said anything to Respondent about

the incident and doesnÔt know if anyone else said anything to Respondent.

19. S.J. also testified the boys were bothering the g irls. She testified one

boy dropped his pants and acted inappropriately in front of her.

20. She complained to Respondent that the boys were Ñbothering and

hittingÒ the girls. S.J. did not tell Respondent about the boy dropping his

pants in front of her or exposing himself.

21. Respondent called the boys over, told them to stop bothering the girls,

and to apologize to the girls for their behavior. The boys said they were sorry

and apologized.

1 Regardless, this part of the incident that day was not alleged or charged in the Notice of

Specific Charges and is not being considered.

22. After P.E., at lunch, the boys again began to bother the g irls. The girls

reported the boysÔ behavior to the counselor.

23. According to Respondent, this type of general complaint by her young

female students was common. In fact, on the P.E. field , the young boys and

girls were constantly harassing, teasing , and annoying one another. When

she received the complaint from S.C . and S.J. , she immediately dealt with the

boys by placing them in time - out and making them apologize.

24. Respondent was not told or made aware of any claims that a boy had

dropped his pants, nor did she witness that behavior.

25. The school had two mounted video cameras surveilling the P.E. field

and shelter. When the Principal was made aware of the allegations from

these girls she reviewed the video footage from the cameras. She was not abl e

to confirm any of the conduct or actions complained of by the girls that day.

26. From the facts, and their reasonable inferences, some boys appear to

have been bothering and harassing these girls during P.E. That seems

consistent with how 4 th grade boy s often interact with 4 th grade girls,

particularly outside on a playground.

27. When presented with these complaints from the girls , Respondent

promptly acted to have the boys sit in time - out and apologize for their

behavior.

28. The complaints did not appear to Respondent to be unusual or so

concerning that they needed to be reported to the school administration. The

complaints involved normal incidents and interactions that occur most days

on an elementary school playground area between young boys and girls. She

listened to the complaints and took the corrective actions necessary to deal

with the situation.

May 2019 Incident

29. In paragraph 16 of the Notice of Specific Charges , the School Board

alleges :

On or about May 16, 2019 and [ sic ] female stude nt

stood up to remove her jacket and the Respondent

angrily grabbed the girl by the arm, squeezed her

arm, and directed her to the ground.

30. The female student involved in the incident, M.M., did not testify or

offer any evidence to support this allegat ion.

31. The incident involving M.M. allegedly occurred in the shelter area

outside the main building. There are two cameras in the shelter surveilling

the area.

32. S tudent s J.F. and M.M. both received FÔs for conduct on May 16, 2019.

Resp. Ex. 1 . J.F. testified that M.M. had been standing up. When Respondent

told her to sit down, M.M. refused.

33. J.F. testified that Respondent used Ña little forceÒ on M.M., Ñbut not

hard, Ò to sit her down, directing her to be seated by taking her upper arm

bicep. M.M. was not pulled hard or snatched forcefully, she just Ñmoved a

little bitÒ to sit down on the ground of the shelter.

34. Other than telling M.M. to sit down, Alvarez did not use any angry or

demeaning language towards M.M. J.F. described Respondent as usin g a

medium tone of voice when dealing with M.M.

35. Upon receiving the complaint that Respondent had grabbed M.M. , the

Principal reviewed the video footage from the cameras. She was unable to

confirm the allegation from the camera videos or that anything problematic

had happened that day.

36. On the day of the alleged incident , Hector Reyes was teaching a class

in the same shelter area as Respondent. He would have been within 20 to

30 feet of Respondent. He was close enough to Respondent and her class to

have heard a commotion. He did not recall hearing or observing any incident

between Respondent and M.M. that day.

37. The class continued and M.M. stayed in the class. At the end of P.E.

class, the regular classroom teacher, Melissa Yen (ÑYenÒ) , came to pick up the

students. Respondent reported to Yen that M.M. refused her instructions to

sit down and misbeha ved . The conversation happened in front of M.M. M.M.

did not protest or complain that Respondent angrily or roughly grabbed her

arm.

38. From the fa cts and their reasonable inferences, Respondent did not

angrily grab M.M. or improperly squeeze her arm. M.M. was being non -

compliant and disrespectful and Respondent appropriately dealt with her

behavior by directing M.M. by the arm to sit down.

C ONCLUSI ONS OF L AW

39. DOAH has jurisdiction over the subject matter and the parties

pursuant to s ections 120.569 and 120.57(1), Florida Statutes.

40. The School Board must prove the allegations in its Notice 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).

41. A Ñ preponderance Ò of the evidence i s defined as the Ñ the greater weight

of the evidence, Ò or evidence that Ñ more likely than not Ò tends to prove a

certain proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000);

BlackÔs Law Dictionary , 1201 (7 th ed. 1999).

42. It is helpful to outl ine the collection of laws and policies which apply to

this case. They are set out below:

COUNT I - MISCONDUCT IN OFFICE

1. Under State Board Rule 6A - 5.056, ÑMisconduct

in OfficeÒ means one or more of the following:

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

Education Profession in Florida Rule 6A - 10.080,

F.A.C.;

(b) A violation 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 studentÔs learning

environment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties.

43. The Code of Ethics of the Education Profession in Florida, Florida

Admin istrative Code Rule 6A - 10.081, provides 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 know ledge, 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

opportunity to 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 judgment and

integrity.

(c) Aware of the importance of maintaining the

respect and conf idence 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.

(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 penalties as

provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make r easonable 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. Sha ll not intentionally violate or deny a studentÔs

legal rights.

* * *

8. Shall not exploit a relationship with a student

for personal gain or advantage.

( c ) Obligation to the profession of education

requires that the individual:

1. Shall maintain ho nesty in all professional

dealings.

* * *

7. Shall not misrepresent oneÔs own professional

qualifications.

8. Shall not submit fraudulent information on any

document in connection with professional activities.

9. Shall not make any fraudulent s tatement or fail

to disclose a material fact in oneÔs own or anotherÔs

application for a professional position.

44 . School Board Policy 3210, Standards of Ethical Conduct, provides , in

relevant part:

All employees are representatives of the District

an d 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 support staff member with direct access to

students shall:

* * *

3. [M]ake a reasonable effo rt to protect the student

from conditions harmful to learning and/or to the

studentÔs mental and/or physical health and/or

safety.

* * *

7. [N]ot intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

9. [N] ot harass or discriminate against any student

on any basis prohibited by law or the School Board

and shall make reasonable efforts to assure that

each student is protected from harassment or

discrimination.

* * *

17. [M]aintain honesty in all pro fessional dealings.

* * *

22. [N]ot engage in harassment or discriminatory

conduct which unreasonably interferes with an

individualÔs performance of work responsibilities or

with the orderly processes of education or which

creates a hostile, inti midating, abusive, offensive,

or oppressive environment; and, further, shall

make reasonable efforts to assure that each

individual is protected from such harassment or

discrimination.

* * *

21. [N]ot use abusive and/or profane language or

display unseemly conduct in the workplace.

* * *

25. [N]ot misrepresent oneÔs own professional

qualifications.

26. [N]ot submit fraudulent information on any

document in connection with professional activities.

27. [N]ot make any fraudulent statement or fail to

disclose a material fact in oneÔs own or anotherÔs

application for a professional position.

45 . Gross Insubordination , as defined by the School Board with reference

to Florida Administrative Code R ule 6A - 5.006, means the intentional refusal

to obey a direct order, reasonable in nature, and given by and with proper

authority , misfeasance, or malfeasance as to involve failure in the

performance of the required duties.

46. In a DOAH hearing, the case is considered Ñde novoÒ by the ALJ based

on the facts and evidence presented at the hearing. This means the evidence

is heard anew and considered again. Likewise, there is no Ñpresumption of

correctnessÒ that attaches to the agencyÔs preliminary decision. Fla. DepÔt of

Transp. v . J.W.C. Co., 396 So. 2d 778 (Fla. 1 st DCA 1981), and Boca Raton

Artificial Kidney Ctr., Inc. v. Fla. DepÔt of HRS , 475 So. 2 d 260 (Fla. 1 st

DCA 1985).

47. Factual findings in a recommended order are uniquely within the

province of the ALJ to determine, based on the broad discret ion afforded to

her or him. Goin v. CommÔn on Ethics , 658 So. 2d 1131 (Fla. 1 st DCA 1995).

See also Heifetz v. DepÔt of Bus. Reg., Div. of Alcoholic Bevs . & Tobacco ,

475 So. 2d 1277 (Fla. 1 st DCA 1985).

48. More specifically, the ALJ has the best vantage p oint to resolve

conflicts, determine the credibility of witnesses, draw permissible and

reasonable inferences from the evidence, and reach ultimate findings of fact

based on the competent and substantial evidence presented. Goin , 658 So. 2d

at 1138; DepÔt of Bus. & ProfÔl Reg. v . McCarthy , 638 So. 2d 57 4 (Fla. 1 st

DCA 1994).

49. Whether Respondent committed the charged offense(s) is a question of

ultimate fact to be decided by the trier - of - fact in the context of each alleged

violation. McKinney v. Castor , 6 67 So. 2d 387, 389 (Fla. 1 st DCA 1995);

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

50. An agency may not substitute its own facts for that of the ALJ so long

as there is adequate evidence in the record to support the ALJÔs factual

findi ngs. Lantz v. Smith , 106 So. 3d 518 (Fla. 1 st DCA 2013). See also Resnick

v. Flagler Cty. Sch. Bd. , 46 So. 3d 1110, 1112 - 13 (Fla. 5 th DCA 2010)(ÑIn a

fact - driven case such as this, where an employeeÔs conduct is at issue, great

weight is given to the findi ngs of the [ALJ], who has the opportunity to hear

the witnessesÔ testimony and evaluate their credibility.Ò).

51. The School Board alleges, in part, that Respondent used improper

physical means to oversee, manage , or control her physical education

students . There is a body of case law addressing the use of reasonable

physical force by a teacher or staff member.

52. One Florida case, cited by several other courts around the nation,

addresses the authority of Florida teachers to control disruptive or unruly

students in the classroom.

53. In the seminal case of Williams v. Cotton , 346 So. 2d 1039 (Fla. 1st

DCA 1977) , the district court considered a civil lawsuit naming a teacher,

Williams, as a defendant for certain injuries received by one of his students

du ring a classroom altercation.

54. The district court examined former section 232.27 , Florida Statute s,

which required teachers to Ñcontrol their pupilsÒ and Ñkeep good orderÒ in the

classroom. This authority still exists. See § 1003.32, Fla . Stat.

55. As background in Cotton , the case revealed that the student was

Ñunruly, boisterous and was disturbing the other students . Ò After repeated

requests by the teacher, Williams, to quiet down and take a seat, the teacher

and student engaged in a physical confron tation necessitated, according to

the teacher, by his attempt to restore order in his classroom. Apparently,

Cotton was physically injured during this confrontation and sued.

56. Although the primary issue in Cotton was whether the evidence

supported the j uryÔs verdict of liability, the district court felt it necessary to

comment on the extent of a teacherÔs authority and duties in Florida. The

c ourt commented that teachers have the power and clear duty under the law

to control their classroom and restore o rder. Of particular interest is the

following quote from the court:

This statute (F.S. 232.27), in authorizing Ï in fact

requiring Ï a teacher to Ñkeep good orderÒ in his

classroom necessarily implies a power to the

teacher to use reasonable physical forc e (not

amounting to corporal punishment) to do so.

Without such reasonably implied power, the

requirement to Ñkeep good orderÒ would be

meaningless.

See , e.g., Virgil L. Morgan, as Superintendent of Schools of Broward C ty. v.

Karen Siebelts , 1989 WL 64500 4 (Fla. Div. of Admin. Hrgs. June 29, 1989 ) .

57. The Cotton case was subsequently cited by the Supreme Court of

Nebraska in Daily v. Board of Educ ation, 588 N.W. 2d 813 (Nebraska 1999).

Although the Daily decision dealt primarily with the issue of what

con stituted corporal punishment in a school setting , it approved and

emphasized the Cotton courtÔs comments and stated:

The Florida court found that a Florida statute

requiring teachers to Ñkeep good orderÒ in the

classroom necessarily implies a power to the

teacher to use reasonable physical force (not

amounting to corporal punishment) to do so. The

court found that without such reasonably implied

power, the requirement to keep good order would

be meaningless.

58. Finally, in Daniels v. Gordon , 503 S.E. 2d 7 2 (Ga. Ct. of Ap p. 1998) .

Cotton was cited again for the proposition that the use of reasonable physical

force may be appropriate under some situations that arise when a teacher

seeks to restore order and regain control of the classroom. See also Peterson v.

Baker , 504 F.3d. 1331 (11th C ir . Ct. A pp . 2007).

59. Applying the relevant facts to the law, and reasonably interpreting the

applicable rules and policies the School Board seeks to enforce, the

undersigned concludes that the School Board did not present sufficient or

persuasive evidence to prove the charges in the Notice of Specific Charges.

Accordingly, there is not a sufficient factual basis to discipline Respondent for

the charges asserted.

R ECOMMENDATION

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

R ECOMMENDED that the School Board enter a final order dismissing the

charges against Respondent and awarding her appropriate back - pay for her

period of suspension.

D ONE A ND E NTERED this 28th day of May , 2021 , in Tallahassee, Leo n

County, Florida.

S

R OBERT L. K ILBRIDE

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 28th day of May , 2021 .

C OP IES F URNISHED :

Michele Lara Jones, Esquire Christopher J. La Piano, Esquire

Miami - Dade County School Board Miami - Dade County School Board

1450 Northeast 2nd Avenue , Room 430 1450 Northeast 2nd Avenue , Suite 430

Miami, Florida 33132 Miami, Florida 33132

Mark Herdman, Esquire Alberto M. Carvalho, Superintendent

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

29605 U.S. Highway 19 North , Suite 110 1450 Northeast Second Avenue, Suite 912

Clearwater, Florida 33761 - 1526 Miami, Florida 33132

Richard Corcoran, Commissioner Matthew Mears, General Counsel

of Education D epartment of E ducation

Department of Education Turlington Building, Suite 1244

Turlington Building, Suite 1514 325 West Gai nes Street

325 West Gaines Street Tallahassee, Florida 32399 - 0400

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.