21-000068TTS Miami-Dade County School Board vs. Nicole S. Reid Status: Closed Recommended Order on Wednesday, September 15, 2021.

Summary: School Board presented insufficient evidence that Respondent made unkind remarks to a student; recommended that suspension be rescinded and Respondent awarded back salary for ten days.

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. 2 1 - 0068 TTS

N ICOLE S. R EID ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by Zoom teleconference on June 3 , 20 2 1 , at sites in Tallahassee and

Miami , Florida.

A PPEARANCES

For Petitioner: Christopher J. La Piano , Esquire

Miami - Dade County School Board

1450 Northeast Seco nd Avenue , Suite 430

Miami , Florida 3 3132

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 S

The issue s in this case are whether Respondent , a teacher, made some

unkind remarks to a student one day in her third - grade class , as Petitioner, a

district school board , alleges; and, if so, whether the school board has just

cause to suspend Respondent from her position for ten days without pay .

P RELIMINARY S TATEMENT

At a meeting on December 9 , 20 20 , Petitioner Miami - Dade County School

Board ( Ñ School Board , Ò the Ñ D istrict , Ò or ÑPetitionerÒ ) voted to suspend

Respondent Nicole S. Reid ( Ñ Reid Ò ) for ten days without pay . Petitioner

alleges that Reid , a n elementary school teacher, made unkind remarks to o ne

of her students, telling him in effect that she would rather not have him in

her class.

Reid timely requested a formal administrative hearing by letter dated

December 1 5, 20 20 . Petitioner referred the matter to DOAH for further

proceedings , and this fi le was opened on January 6, 2021 . Upon assignment,

the undersigned set the final hearing , which eventually took place on June 3,

20 2 1 .

At the final hearing, Petitioner called three witnesses, namely students

D.M. and J.T, along with D.M.Ôs mother, A.M . Petitioner Ô s Exhibits 1

through 4 , as well as the first pages, respectively, of PetitionerÔs Exhibits 5

through 7, were received in evidence without objection . Reid testified on her

own behalf and offered no exhibits .

The final hearing transcript was filed on August 19 , 20 2 1 . Each party

timely filed a Proposed Recommended Order ( Ñ PRO Ò ) on August 30 , 202 1 . The

parties Ô PROs have been considered in the preparation of this Recommended

Order.

Unless otherwise indicated, ci tations to the official statute law of the state

of Florida refer to Florida Statutes 20 20 .

F INDINGS OF F ACT

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

control, and supervise the Miami - Dade County Public School System.

2 . At all times relevant to this matter, including specifically the 201 9 -

20 20 school year, Reid was employed as a third - grade teacher at the North

County K - 8 Center . Reid has been a D istrict employee for approximately

21 years.

3. The alleged incident upon wh ich the School Board relies as the grounds

for suspending Reid occurred , according to the No tice of Specific Charges, on

Thursday, September 26 , 2019 . It is alleged that Ñ[o]n that date [Reid] stated

to student D.M. that the best birthday and Christmas present she had

received was when D.M. was absent from school. She also told D.M. that she

did not want him in her class but was stuck with h im.Ò

4 . D.M.Ôs hearing testimony matched the DistrictÔ s principal allegation

nearly verbatim . In his recollection, ÑMs. Reid said that it was the best

birthday slash Christmas gift ever because I wasnÔt there on Thursday, and

she said she doesnÔt want me in the classroom and that she i s stuck with me ,

and tha t if I want to, I could leave the classroom and she can pick on

anybody.Ò 1

1 It is not clear exactly when, or for how long, D.M. was absent . On direct examination, D.M.

responded affirmatively when the School Board attorney suggested that he had been out Ñfor

a few days,Ò but, in his own words, D.M. specifically mentioned only ÑThursday,Ò which

happens to be the day of the week on which the alleged incident allegedly occurred . Perh aps

D.M. was simply mistaken about which day he had been out, or maybe his absence had

occurred a week or more before the alleged incident . On cross - examination, D.M. said that he

might have been absent due to a dental appointment, which would not likely h ave required a

Ñfew daysÒ off, or even , ordinarily , a full day for that matter . To be sure, this confusion is not

fatal to the School BoardÔs case . Still, if D.M. had been out, e.g., for the three days (Monday

through Wednesday) immediately preceding the a lleged incident, that fact Ð which was not

proved Ð would have made the School BoardÔs case stronger . Conversely, if D.M. had been out

of class only for one day (likely), and if his absence had taken place a week or more before the

alleged incident (possible), there is less likelihood of ReidÔs having made the comments at

issue . This is because, generally speaking, a shorter absence likely would make less of an

impression, and a more remote one would be more likely forgotten Ð and vice versa.

5 . D.M. frequently misbehaved in class and was often in trouble . Although

it was still early in the school year, by the time of the alleged incident , Reid

already had spoken with D.M.Ôs mother several times about D.M.Ôs poor

conduct in the classroom . Nevertheless, according to D.M . , Reid made the

alleged remarks for no reason, out of the blue, without any provocation such

as misbehavior on D.M.Ôs part , and indeed in the absence of any

circumstances which might have prompted Reid to say such things . Perhaps

ironically, however, D.M.Ôs testimony , which is un rebut t ed , weakens the

DistrictÔs case . Common experience teaches that comments of the kind in

question are more likely to be made in the heat of the moment, when angry or

upset, than without so me contemporaneous provocation , real or perceived . To

be clear, it is not inconceivable that a teacher would make such remarks

gratuitously, as D.M. claims happened in this instance ; it is just more likely

that such comments would be made in a moment of exasperation.

6 . The only corroborating eyewitness presented by the School Board was

D.M.Ôs close frien d, J.T. , who testified that Reid Ñwas , like Ð she was, like,

ÓD.Ô Ð she was, like, ÓIÔm so glad that D. wasnÔt there those few days.Ò When

later prompted with a leading question, whereby the District attorney asked

J.T. whether Reid had mentioned Ñanything ab out birthday or Christmas

gifts,Ò J.T. answered, ÑYeah. She said it was the best Christmas gift . Ò 2

7 . Reid flatly denied having made the alleged comments , or anything like

them , to D.M . This is not a case, in other words , where the teacher attempts

to explain, put it in context, dispute the contents of , or otherwise downplay

the meaning or effect of a remark that was, at least in some form, admittedly

made . Reid did argue, in her testimony, that she would not have made th e

remarks attributed to her because (i) neither her birthday nor Christmas

occurs on or around September 26 and (ii) she does n o t use the word

2 J.T. clarified that the ÑitÒ in question was Ñ[t]hat [D.M.] was absent those few days. Ò To

repeat for emphasis, however, it is unlikely, based on D.M.Ôs testimony, and thus , it is not

found, that D.M. had been absent for a Ñfew daysÒ prior to the alleged incident . See

fo ot note 1, supra .

ÑChristmasÒ in the classroom . The District ridicules this argument as

unpersuasive . In the undersigned Ôs view, th e argument makes a fair point ,

but it is neither dispositive , nor compelling . Regardless of its relative ly

limited persuasive force , however, the argument does not undermine ReidÔs

unconditional denial, because it is entirely consistent with her testimony that

she did not make the remarks at issue.

D ETERMINATIONS OF U LTIMATE F ACT

8 . The District has failed to prove its allegations against Reid by a

preponderance of the evidence . It is, therefore, unnecessary to make findings

of fact concerning ReidÔs disciplinary history, if any, for purposes of applying

the progressi ve discipline policy in this case, as there is no current basis for

discipline.

9 . To elaborate on the credibility determinations , this is basically a Ñhe

said/she saidÒ case because D.M. and Reid have given irreconcilably

conflicting testimony about the alleged incident. 3 It is not necessary ,

however, for the undersigned to decide which of the two witnesses was the

more credible, and then to make findings of fact in accordance with that

w itnessÔs testimony . This is because , w hereas the District has the burden to

prove that its allegations are more likely than not true , Reid need not prove

her innocence .

10 . At bottom, the DistrictÔs evidence, although plausible, does not meet

the standard of proof , as a matter of ultimate fact . At the same time, ReidÔs

testimony, although credible as far as it goes, does not, when weighed in the

3 J.T.Ôs testimony adds very little weight to D.M.Ôs because, as D.M.Ôs friend, he was not a

disinterested witness, and because J.T. did not provide a unique perspective or add any

relevant new fact(s) to the record . If the incident took p lace as alleged, moreover, then surely

there would be other students, besides J.T., with personal knowledge of the event . That none

were called instead of, or in addition to, J.T., whose neutrality may reasonably be doubted, is

detrimental to the DistrictÔ s case . The testimony of D.M.Ôs mother likewise carries relatively

little weight because she was not an eyewitness; her secondhand knowledge of the alleged

incident is necessarily derivative of D.M.Ôs.

balance with D.M.Ôs testimony and the Distri ctÔs other evidence, support

affirmative exculpatory findings . Thus, the undersigned cannot find Reid

guilty as charged, and he cannot find her innocent, either . Because the

District bears the burden of proof, however, its case fails, and Reid prevails .

C ONCLUSIONS O F L AW

1 1 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

1 2 . A district school board employee against whom a disciplinary

proceeding has been initiated must be given written notice of the specific

charges prior to the hearing . Although the notice Ñ need not be set forth with

the technical nicety or formal exactness required of pleadings in court, Ò it

should Ñ specify the [statute,] rule, [regulat ion, policy, or collective bargaining

provision] the [school board] alleges has been violated and the conduct which

occasioned [said] violation. Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983) (Jorgenson, J. , concurring).

1 3 . Once the school board, in its notice of specific charges, has delineated

the offenses alleged to justify termination, those are the only grounds upon

which dismissal may be predicated . See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep Ô t of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep Ô t of Bus. & Prof Ô l

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep Ô t of Prof Ô l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep Ô t of P rof Ô l Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den . , 576 So. 2d 295

(Fla. 1991).

1 4 . In an administrative proceeding to suspend or dismiss a member of

the instructional staff, the school board, as the charging party, bears the

burde n of proving, by a preponderance of the evidence, each element of the

charged offense(s) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v . Nassau Cty. Sch. Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993).

1 5 . The instructional staff member Ô s guilt or innocence is a question of

ultimate fact to be decided in the context of each alleged violation . McKinney

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

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

1 6 . The District presented insufficient proof that Reid made the remarks

to D.M. that she was alleged to have made . This negative determination of

ultimate fact is dispositive.

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

exonerating Nicole S. Reid of all charges brought against h er in this

proceeding and awarding Reid b ack salary as required under section

1012.33(6)(a) .

D ONE A ND E NTERED this 1 5 th day of September , 202 1 , in Tallahassee,

Leon County, Florida.

S

J OHN G. V AN L ANINGHAM

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 1 5 th day of September , 202 1 .

C OPIES F URNISHED :

Christopher J. La Piano , Esquire Alberto M. Carvalho, Superintendent

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

1450 Northeast Second Avenue, Suite 430 1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 Miami, Florida 33132

Anastasios Kamoutsas , General Counsel Mark Herdman , Esquire

Department of Education Herdman & Sakellarides, P.A.

Turlington Building, Suite 1244 29605 U.S. Highway 19 North, Suite 110

325 West Gaines Street Clearwater, Florida 33761 - 1526

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 O F 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.