20-005179TTS Miami-Dade County School Board vs. Cecilia M. Zumeta Status: Closed Recommended Order on Wednesday, June 16, 2021.

Summary: School Board proved by a preponderance of the evidence that just cause exists to suspend without pay for ten days Respondent's employment as a teacher for misconduct in office, gross insubordination, and violation of School Board policies.

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 - 5179TTS

C ECILIA M. Z UMETA ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge Darren A. Schwartz of

the Division of Administrative Hearings ( Ñ DOAH Ò ) for final hearing on

March 19, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - D ade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

S TA TEMENT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend Respondent Ô s

employment as a teacher, without pay, for ten days.

P RELIMINARY S TATEMENT

By letter dated November 19, 2020, Petitioner, Miami - Dade County

School Board ( Ñ School Board Ò ), notified Respondent, Cecilia M. Zumeta

( Ñ Respondent Ò ), of the School Board Ô s action to suspend her employment as a

teacher, without pay, for ten days. Respondent timely requested an

administrative hearing. Subsequently, the School Board referred the matter

to DOAH to assign an Administrative Law Judge to conduct the final

hearing.

The Notice of Specific Charges contains certain factual allegations, and,

based on those factual allegations, the School Board charged Respondent

with Misconduct in Office and G ross Insubordination. The final hearing was

initially set for January 20, 2021. On December 21, 2020, Respondent filed an

unopposed motion to continue the final hearing. On December 22, 2020, the

undersigned entered an Order granting the motion and resetti ng the final

hearing for February 5, 2021. On January 26, 2021, the parties filed a joint

motion to continue the final hearing. On January 26, 2021, the undersigned

entered an Order granting the motion and resetting the final hearing for

March 19, 2021.

The final hearing was conducted on March 19, 2021, with all parties

present. At the hearing, the School Board presented the testimony of

Barbara Leveille Brown, S.M., and T.S. The School Board Ô s Exhibits 1

through 4 and 7 were received into evidence based on the stipulation of the

parties. Respondent testified on her own behalf. Respondent did not offer any

exhibits into evidence.

The one - volume final hearing Transcript was filed at DOAH on May 21,

2021. On May 26, 2021, Respondent filed an unopposed moti on to extend the

deadline for the parties to file proposed recommended orders. On May 27,

2021, the undersigned entered an Order granting the motion. The parties

timely filed proposed recommended orders, which were considered in the

preparation of this Rec ommended Order.

On March 15, 2021, the parties filed their Joint Pre - Hearing Stipulation,

in which they stipulated to certain facts. These facts have been incorporated

into this Recommended Order as indicated below. Unless otherwise indicated,

all rule a nd statutory references are to the versions in effect at the time of the

alleged violations .

F INDINGS OF F ACT

1. The School Board is a duly constituted school board charged with the

duty to operate, control, and supervise the public schools within Miami - Dade

County, Florida.

2. The School Board hired Respondent in 1995 as a teacher. Since the

2014 school year, and at all times relevant to this case, Respondent was

employed at Laura C. Sanders Elementary School ( Ñ Laura Sanders Ò ), a public

school in Miami - Dade County, pursuant to a professional services contract . 1

3. At all times relevant to this case, Respondent Ô s employment with the

School Board was governed by Florida law, the School Board Ô s policies, and

the collective bargaining agreement between the School Board and the

United Teachers of Dade.

Disciplinary History

4. On November 26, 2018, the principal at Laura Sanders, Barbara

Leveille - Brown, issued Respondent a letter of reprimand concerning an

alleged incident in which Respondent pulled a student Ô s jacket and the hair of

another student during class. The reprimand directed Respondent to: (1)

adhere to all School Board policies, specifically, School Board Polic y 3210,

Standards of Ethical Conduct; (2) conduct herself in a manner that will

reflect c redit upon herself and the School Board; and (3) cease and desist

from placing her hands on any student in an inappropriate manner. The

1 Respondent is no longer a teacher at Laura Sanders. However, she is still employed by the

School Board as a teacher at another school.

principal informed Respondent that failure to comply with the directives may

result in further disciplinary action.

The March 11, 2019, Incident Involving S.M.

5. The alleged conduct giving rise to the School Board Ô s proposed

suspension of Respondent occurred on March 11, 2019, during the 2018 - 2019

school year, at which time Respondent was a third - grade English language

a rts ( Ñ ELA Ò ) teacher at Laura Sanders. At that time, S.M. and T.S. were

female students in Respondent Ô s class.

6. On March 11, 2019, Respondent announced to the class it was time to

start getting ready for lunch. Respondent lined up her students at the fro nt

door of her classroom for the students to exit the classroom and go to the

cafeteria for lunch. As the students lined up, some of them moved back and

forth in the line, causing S.M. to move backward and accidently step on

Respondent Ô s bare toes .

7. At the time, Respondent was wearing open toe Ñ flats Ò shoes with a

Ñ rhinestone buckle on the tip. Ò In response to S.M. stepping on Respondent Ô s

toes, Respondent lost control. Respondent screamed very loud in pain,

grabbed S.M. Ô s arm, pinched her hard on the a rm, and pushed her .

Respondent Ô s pinch on S.M. Ô s arm was so hard that it left a mark on S.M. Ô s

arm. As a result of Respondent Ô s conduct, S.M. became upset and cried.

8. Respondent Ô s conduct on March 11, 2019, was inappropriate, reflected

poorly upon herse lf and the School Board, and reduced Respondent Ô s ability

to effectively perform her duties. Respondent could certainly have responded

to S.M. accidently stepping on her foot through means other than losing

control and resorting to inappropriate physical c ontact with S.M.

9. The persuasive and credible evidence adduced at hearing demonstrates

that Respondent is guilty of misconduct in office in violation of Florida

Administrative Code Rules 6A - 5.056(2)(b) through (e) and 6A - 10.081(2)(a)1.,

5., and 6 . By en gaging in inappropriate physical contact with S.M. on

March 11, 2019, Respondent violated rules 6A - 5.056(2)(b) through (e) and

6A - 10.081(2)(a)1., 5., and 6., by disrupting the student Ô s learning

environment, thus reducing Respondent Ô s ability to effective ly perform her

duties; failing to make reasonable effort to protect the student from

conditions harmful to learning and/or to the student Ô s mental and/or physical

heath and/or safety; intentionally exposing the student to unnecessary

embarrassment; and int entionally violating or denying the student Ô s rights.

Respondent also violated School Board Policy 3210, Standards of Ethical

Conduct, sections A.3., and 7 . , which mirror rules 6A - 10.081(2)(a)1., and 5.,

and School Board Policy 3210, Standards of Ethical C onduct, section A.21.,

which requires that teachers not Ñ display unseemly conduct in the

workplace. Ò Respondent also violated School Board Policy 3213, Student

Supervision and Welfare, which requires that teachers protect the physical

and emotional well - be ing of students by maintaining the highest professional,

moral, and ethical standards in dealing with the supervision, control, and

protection of students on or off school property.

10. The persuasive and credible evidence adduced at hearing

demonstrates t hat Respondent is guilty of gross insubordination in violation

of rule 6A - 5.056(4) by intentionally refusing to obey a direct order, reasonable

in nature, and given by and with proper authority. By failing to comply with

the specific directives detailed ab ove to Ñ cease and desist from placing her

hands on any students in an inappropriate manner, Ò Respondent

intentionally refused a direct order, reasonable in nature, and given by and

with proper authority.

C ONCLUSIONS OF L AW

11. DOAH has jurisdiction of the subject matter and the parties to this

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

(2019).

12 . Respondent is an instructional employee, as that term is defined in

section 1012.01(2), Florida Statutes . The School Board has the a uthority to

suspend instructional employees pursuant to sections 1012.22(1)(f),

1012.33(1)(a), and 1012.33(6)(a).

13 . The School Board has the burden of proving, by a preponderance of the

evidence, that Respondent committed the violations alleged in the No tice of

Specific Charges and that such violations constitute Ñ just cause Ò for

dismissal. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch. Bd. of Dade

Cty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990) .

14 . The preponderance of the evidence standard requi res proof by 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) . The preponderance of the evidence standard is less stringent than the

stand ard of clear and convincing evidence applicable to loss of a license or

certification . Cisneros v. Sch. Bd. of Miami - Dade Cty ., 990 So. 2d 1179 (Fla.

3d DCA 2008).

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

ultimate fact to be d etermined by the trier - of - fact in the context of each

alleged violation . Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA

1985); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

16 . Sections 1012.33(1)(a) and (6)(a) provide, in pertinent part, that

instructional staff may be suspended during the term of their employment

contract only for Ñ just cause. Ò §§ 1012.33(1)(a) and (6)(a), Fla. Stat . Ñ Just

cause Ò is defined in section 1012.33(1)(a) to include Ñ misconduct in office Ò and

Ñ gross insub ordination. Ò

17 . Section 1001.02(1), Florida Statutes, grants the State Board of

Education authority to adopt rules pursuant to sections 120.536(1) and

120.54 to implement provisions of law conferring duties upon it.

18 . Consistent with this rulemaking au thority, the State Board of

Education has defined Ñ misconduct in office Ò in rule 6A - 5.056(2), which

provides:

(2) Ñ Misconduct in Office Ò means one or more of the

following:

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

Education Profession in Florida as adopted in Rule

6A - 10.080, F.A.C.;

(b) A 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 disrup ts the student Ô s learning

environment; or

(e) Behavior that reduces the teacher Ô s ability or his

or her colleagues Ô ability to effectively perform

duties.

19. Rule 6A - 10.080, titled Ñ Code of Ethics of the Education Profession in

Florida, Ò was repealed, effective March 23, 2016, and reenacted in rule 6A -

10.081(1)(a) through (c). Rule 6A - 10.081(1)(a) through (c) provides:

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and dignity of

every per son, 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

opportunity for all.

( b) The educator Ô s primary professional concern will

always be for the student and for the development

of the student Ô s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integr ity.

(c) Aware of the importance of maintaining the

respect and confidence of one Ô s 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.

20. While r ule 6A - 5.056(2)(a) still provides that violation of the Code of

Ethics, Ñ as adopted in [r]ule 6A - 10.080, Ò constitutes Ñ misconduct, Ò it has been

frequently noted that the precepts set forth in the Ñ Code of Ethics Ò are Ñ so

general and so obviously aspiration al as to be of little practical use in

defining normative behavior. Ò Broward Cty. Sch. Bd. v. Miller , Case

No. 20 - 1335TTS (Fla. DOAH Nov . 10, 2020; Fla. BCSB Feb . 9, 2021);

Broward Cty. Sch. Bd. v. Beckham , Case No. 19 - 4589TTS (Fla. DOAH Ma r. 9,

2020; Fla . BCSB Apr. 30 , 2020); Miami - Dade Cty. Sch. Bd. v. Lantz , Case

No. 12 - 3970 (Fla. DOAH July 29, 2014) . School Board Policy 3210.01, titled

Ñ Code of Ethics, Ò mirrors the precepts set forth in rule 6A - 10.081(1)(a)

through (c) .

21. Rule 6A - 5.056(2)(b) incorpo rates by reference rule 6A - 10.081, which is

titled Ñ Principles of Professional Conduct for the Education Profession in

Florida. Ò Rule 6A - 10.081(2)(a) provides, in pertinent part:

(a) Obligation to the student requires that the

individual:

1 . Shall make re asonable effort to protect the

student from conditions harmful to learning and/or

to the student Ô s mental and/or physical health

and/or safety.

* * *

5 . Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

6 . S hall not intentionally violate or deny a student Ô s

legal rights.

22 . Consistent with its rulemaking authority, the State Board of

Education has defined Ñ gross insubordination Ò in rule 6A - 5.056(4), which

provides:

(4) Ñ Gross insubordination Ò means the int entional

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.

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

pertinent part:

All employees are representatives of the District

and shall conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and the

school system.

A . An instructional staff member shall:

* * *

3 . make a reasonable effort to protect the student

from conditions harmful to learning and/or to the

student Ô s mental and/or physical health and/or

safety;

* * *

7 . not intentionally expose a student to

unnec essary embarrassment or disparagement;

* * *

21 . not use abusive and/or profane language or

display unseemly conduct in the workplace;

24. School Board Policy 3213, Student Supervision and Welfare, provides,

in pertinent part:

Protecting the physical and emotional well - being of

students is of paramount importance. Each

instructional staff member shall maintain the

highest professional, moral, and ethical standards

in dealing with the supervision, control, and

protection of students on or off s chool property .

25 . Turning to the present case, the School Board proved by a

preponderance of the evidence that Respondent is guilty of misconduct in

office in violation of rule s 6A - 5.056(2) (b) through (e) and 6A - 10.081(2)(a) 1.,

5., and 6 . As detai led above, Respondent failed to make reasonable effort to

protect her student from conditions harmful to learning and intentionally

exposed her student to unnecessary embarrassment or disparagement .

Respondent also engaged in conduct which disrupted the st udent Ô s learning

environment and reduced Respondent Ô s ability to effectively perform her

duties. Respondent also violated School Board Policy 3210, Standards of

Ethical Conduct, sections A.3., 7., and 21., and School Board Policy 3213,

Student Supervision and Welfare.

26 . The School Board proved by a preponderance of the evidence that

Respondent is guilty of gross insubordination in violation of rule 6A - 5.056(4)

by intentionally refusing to obey a direct order, reasonable in nature, and

given by and with p roper authority.

R ECOMMENDATION

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

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

upholding the suspension of Respondent Ô s employment as a teacher, without

pay, fo r ten days.

D ONE A ND E NTERED this 16th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Cl erk of the

Division of Administrative Hearings

this 16th day of June , 2021 .

C OPIES F URNISHED :

Christopher J. La Piano, Esquire Brand en M. Vicari, Esquire

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

1450 Northeast 2nd Avenue , Suite 430 29605 U.S. Highway 19 North , Suite 110

Miami, Florida 33132 Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent Matthew Mears, General Counsel

Miami - Dade County Public Schools D epartment of E ducation

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

Miami, Florida 33132 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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.