STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-264

)

HARRISON HOWARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held public hearings in this case on March 22 and September 7, 1979, in Miami, Florida. Pursuant to leave, the parties were permitted through October 18, 1979, to submit Memoranda supportive of their respective positions. Closing Memoranda were received from the parties approximately October 24, 1979, and has been considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Michael P. Maguire, Esquire and

Michael Friend, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

For Respondent: Elizabeth J. du Fresne, Esquire

du Fresne and du Fresne, P.A. 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUE

The issue posed for decision herein is whether or not the Petitioner established by competent and substantial evidence, its allegations that the Respondent engaged in misconduct and gross insubordination by violating School Board policy and administering corporal punishment to a student in violation of Florida Statutes s231.36(6) and School Board Policy 6GX13-5-1.07.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found.

   
   

2. Harrison Howard, Respondent, has been employed by the Dade County School Board as a math teacher for more than three years. On January 23, 1978, the Respondent was involved in a physical altercation with a then seventh grade math student of his, Maruchi Intriago. Based thereon, the Petitioner, School

   Board of Dade County, reprimanded the Respondent for alleged violation of School Board Policy 6GX13-5D-1.07,the administering of unauthorized corporal punishment to a student, for which the Respondent was suspended without pay for a period of fifteen days effective beginning February 1, 1978. The circumstances surrounding the January 23, 1978, incident are as follows:

   
   

3. On January 20, 1978, Maruchi Intriago was observed by Respondent copying answers from another student's workbook. When the Respondent observed Miss Intriago copying, he refused to accept her workbook, whereupon Miss Intriago ripped the workbook up, knocked over several rows of chairs and stormed out of the classroom shouting racial slurs and uttering profane outbursts. This incident occurred during the fourth period on Friday, January 20, 1978, nearing the end of the class period. Respondent did not pursue efforts to discipline Miss Intriago inasmuch as it was a Friday nearing the end of the class period. On January 23, 1978, the following Monday, Miss Intriago approached the Respondent during the fourth period class and wanted a test booklet again to complete her examination. Respondent refused to grant her permission to do this, whereupon Miss Intriago again exhibited the same behavioral outbursts she displayed the previous Friday. Miss Intriago attempted to leave the room, whereupon the Respondent stopped her by holding her hand. Respondent attempted to get Miss Intriago to straighten the row of chairs she had knocked over in this tirade; however, she refused. Respondent again grabbed Miss Intriago by her wrist and hand and attempted to get her to straighten up the row of chairs she had knocked over, to no avail. Miss Intriago landed on the floor in a sitting position with her legs stretched across the entrance way to the door where students for the next class period were attempting to enter the room. Respondent pushed Miss Intriago's legs and arms aside and the entering students were able to enter the class. According to Respondent, Miss Intriago struck him but he did not strike her back.

   
   

4. The altercation lasted approximately five minutes on January 23, 1979, and Miss Intriago, according to Respondent, Instructors Thomas Roses and Margo McFarland, did not appear to be physically hurt. Respondent observed no bruises, contusions, etc., to Miss Intriago's person.

   
   

5. Thomas Roses, also a teacher at W. R. Thomas Junior High School during the 1977-78 school year, observed Respondent following the Intriago incident while Respondent was handling a second disciplinary problem involving another student, George Estobes. Respondent escorted student Estobes to the Principal's office and although Respondent appeared, in Roses' opinion, to be visibly upset, was not angry.

   
   

6. Margo McFarlane, a home economics teacher at W. R. Thomas, had Maruchi Intriago as a student in her class following the incident with the Respondent. (Th 34, 35.) On the day in question, the home economics class was running a "restaurant" and half the students worked in the "restaurant" one day and the other half were "customers". It was Miss Intriago's day to be a "customer" which enabled her to eat the meal that the class prepared. Miss Intriago came to Ms. McFarlane's class approximately ten to fifteen minutes late and explained to the class that she had been down to the Principal's office filling out an incident report. Miss Intriago, upon learning that it was her day to be a "customer" at the "restaurant", advised her classmates that although she was supposed to report back to the office for further questioning regarding the incident with Respondent, that she was not leaving and would stay to get her hamburger, french fries and milkshake. (TR 36)

7. Ms. McFarlane inquired if Miss Intriago was okay, whereupon she responded that she was all right. In this connection, Ms. McFarlane testified that Miss Intriago was "very, very much her active self." (TR 37, 38.) Ms. McFarlane testified that Miss Intriago was a problem student who was constantly counselled and, for that reason, she, on several occasions, wanted to exclude Miss Intriago from her class.

   
   

8. Maruchi Intriago, a fourteen-year-old student now at Francisco Baldor School, was a former math student of Respondent and recalled the incident with Respondent which occurred on January 23, 1978.

   
   

9. According to Miss Intriago, the subject incident occurred while the Respondent was asking a fellow student, George Estobes, to pick up some paper which was under a back table in the classroom. Additionally, Miss Intriago recalled Respondent asking her to pick up the paper. According to Miss Intriago, the Respondent struck her in the stomach (the upper abdomen) and Respondent later hit her again. At that point, the bell rang and, according to Miss Intriago, while running from the classroom, she tripped over a chair which knocked over other chairs as she was leaving the room. At that point, the Respondent grabbed Miss Intriago by her wrist and asked her to pick up the chair which she had knocked over. Miss Intriago, by her own testimony, refused to pick up the chair. According to Miss Intriago, the Respondent picked her up from a sitting position by her ankles, hung her upside down and threw her out head first into the hallway.

   
   

10. Throughout Miss Intriago's testimony, she was extremely evasive, consistently changed her story regarding this physical altercation with the Respondent and the fact that she had left pages blank in her work booklet. She failed to recall pertinent particulars respecting this incident. In this regard, the undersigned noted that Miss Intriago is about the same height as the Respondent and weighs more than one hundred five pounds. Miss Intriago's assertion that the Respondent picked her up by her ankles and threw her out of the classroom head first is simply incredible based on Miss Intriago's account of the incident, Respondent's size, and the manner in which she described that she was thrown out of the classroom. Miss Intriago also gave conflicting testimony respecting the number of questions and pages that she copied from the other student's workbook. (TR 27, 28 and 40.) Throughout Miss Intriago's testimony, her tone of voice and mannerism impressed the undersigned as being a disruptive, problem student who would be bent toward having her way in a teacher's classroom and failing to accomplish such, would conjure up a story to attempt to get even with the disciplinary measures taken by that teacher. In this conclusion, consideration is given to the fact that Miss Intriago admitted that she copied from another student's workbook, her admission that she knocked chairs over in the classroom and refused to pick up the same, and her utterances of racial slurs in the presence of her classmates. With these facts, plus the corroborative testimony of Instructors Roses and McFarlane, the undersigned is of the considered opinion that Miss Intriago's testimony is incredible and, therefore, unworthy of belief.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

13. The authority of the Petitioner is derived from Chapter 231, Florida Statutes, and School Board policy 6GX13-5D-1.07.

    
    

14. Insufficient evidence was offered to sustain the Petitioner's suspension of the Respondent for a fifteen-day period beginning February 1, 1978.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent be reimbursed for the loss of pay he suffered as a result of the fifteen-day suspension without pay and that his personnel file be expunged of all material respecting the subject incident.

DONE and ENTERED this 29th day of November, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Michael P. Maguire, Esquire and Michael Friend, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

Elizabeth J. du Fresne, Esquire du Fresne and du Fresne, P.A.

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

J. L. Jones, Superintendent Dade County Public Schools 1410 N.E. 2nd Avenue

Miami, Florida 33132

Docket for Case No: 78-000264

Orders for Case No: 78-000264