STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner, ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6175

)

EDITH E. GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before J. Stephen Menton, the assigned Hearing Officer from the Division of Administrative Hearings, on June 25, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Gregory A. Chaires, Esquire

Florida Department of Education Professional Practices Services

352 Florida Education Center Tallahassee, Florida 32399

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Ave., Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.

PRELIMINARY STATEMENT

On September 21, 1992, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent, Edith Gonzalez, alleging that Respondent engaged in inappropriate conduct and made racially disparaging comments while employed by the Dade County School Board (the "School Board".) The Administrative Complaint contains five counts: Count I charges Respondent with violating Section 231.28(1)(f), Florida Statutes, as a result of personal conduct which seriously reduced her effectiveness as an employee of the School Board; Count II charges Respondent with violating Section 231.28(1)(h), Florida Statutes, for violating the rules of the State Board of Education and/or the statutory requirements of Chapter 231, Florida Statutes; Count III charges Respondent with violating Rule 6B-1.006(3)(a), Florida Administrative Code, as a

result of her alleged failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety; Count IV charges Respondent with violating Rule 6B-1.006(3)(e), Florida Administrative Code, for allegedly intentionally exposing students to unnecessary embarrassment or disparagement; and Count V charges Respondent with violating Rule 6B- 1.006(3)(g), Florida Administrative Code, for denying a student a benefit based upon race, color or national or ethnic origin.

The Respondent timely filed an Election of Rights form denying the allegations set forth in the Administrative Complaint and requesting a formal administrative hearing to contest the charges. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, the parties stipulated to paragraphs 1, 2, 3, 7 and 8 of the Administrative Complaint. Petitioner presented the testimony of three witnesses: Desmond Patrick Gray, the associate supervisor for the Bureau of Professional Standards and Operations for the School Board, D. P., and Roxanne Mendez. Petitioner offered four exhibits into evidence, all of which were accepted without objection.

Respondent testified on her own behalf and also presented the testimony of four other witnesses: R. W., Mary Barrer, Carmita Siegel and Raymonde Descartes. Respondent did not offer any exhibits into evidence.

A transcript of the proceeding has been filed. Both Petitioner and Respondent have timely submitted Proposed Recommended Orders. A ruling on each of the party's proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996.

   
   

2. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black.

   
   

3. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador.

   
   

4. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding.

5. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand.

   
   

6. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992.

   
   

7. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board.

   
   

8. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students.

   
   

9. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them.

   
   

10. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students.

11. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced.

    
    

12. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate.

    
    

13. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell."

    
    

14. Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation.

    Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving.

    While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments.

    
    

15. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

17. The Education Practices Commission is empowered to revoke, suspend, or otherwise discipline the teaching certificate of a certified teacher who is found to have violated any of the provisions of Section 231.28, Florida Statutes, and/or the rules promulgated thereunder. See, Sections 231.261, 231.262, and 231.28, Florida Statutes.

    
    

18. In the Administrative Complaint, Petitioner alleges that Respondent has violated Sections 231.28(1)(f) and (h), Florida Statutes, and Rules 6B- 1.006(3)(a), (e) and (g), Florida Administrative Code.

    
    

19. Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

20. The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The

    evidence must be of such weight that it prod- uces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds, at page 958, the following:

    
    

    "Clear and convincing evidence" is an inter- mediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used

    in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

21. Section 231.28(1), Florida Statutes, provides as follows:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certi- ficate of any person defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in Subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with rein- statement subject to provisions of Subsec- tion (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided that it can be shown that such person: . . .

       * * *

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school; . . .

       
       

22. The evidence established that, as a result of the incident when she told a rowdy group that they were acting like "Haitians just off the boat," Respondent's effectiveness as an employee at the School was reduced. Consequently, it is concluded that Respondent violated Section 231.28(1)(f).

23. Section 231.28(1)(h), Florida Statutes, authorizes Petitioner to suspend or revoke a teaching certificate if it finds a teacher has violated the provisions of law or Rules of the State Board of Education. Rule 6B-1.006(3) delineates the obligations of a teacher to a student. Subsection (a) of that Rule requires a teacher to make a reasonable effort to protect a student from conditions harmful to learning or to health or safety. Subsection (e) requires a teacher to refrain from intentionally exposing a student to unnecessary embarrassment or disparagement. Subsection (g) prohibits a teacher from excluding a student from participation in a program based upon race, color or national or ethnic origin. Based upon the evidence presented in this case, it cannot be concluded that Respondent violated these rules. Respondent may not have been suited and/or able to handle a disruptive class with numerous students with behavioral problems, however, the evidence presented in this case was insufficient to conclude that her conduct violated any of the cited rules.

    While some of her comments were insensitive and cannot be condoned, the evidence regarding the context in which they were made indicates that Respondent was not intending to make racial slurs and/or disparage the students. In this regard, the testimony of R. W., a student in one of Respondent's classes at the school, was very persuasive and established that Respondent tried to teach the students to be tolerant and respectful of cultural differences.

    
    

24. As set forth above, Respondent has violated Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint. The range of penalties for such a violation are set forth in Section 231.262(6)(b)(g). Petitioner can only impose penalties in this case based upon the facts alleged in the Administrative Complaint and established by the evidence presented at the hearing. Here, the allegations and evidence were limited to certain comments allegedly made by Respondent during the 1991/1992 school year. In its Proposed Recommended Order, Petitioner has cited to certain other incidents during Respondent's employment by Dade County. The School Board's decision to terminate Respondent's contract was predicated on a number of these other incidents which took place over Respondent's career. The evidence regarding these other incidents was sketchy at best. In any event, since they were not alleged in the Administrative Complaint, they cannot serve as a basis for disciplinary action in this case. See, Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987) and Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2nd DCA 1984).

    
    

25. In sum, disciplinary action in this case can only be imposed for the outburst which occurred while Respondent was dealing with an unruly group. In determining an appropriate penalty to impose upon Respondent, due consideration should be given to her years of dedication to her profession, the lack of any malicious intent on her part, the esteem with which she is held by at least some of her students, and the punishment that has already been imposed by her employer. Given the circumstances, an appropriate penalty in the instant case would be a written reprimand and probation for one year.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year.

DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.

ENDNOTES

1/ These students who testified at the hearing will be referred to by their initials in order to protect the public disclosure of their identity, pursuant to Sections 228.093(3)(d) and 119.07, Florida Statutes.

2/ It should be noted that Respondent's decision to resign rather than challenge the School Board's decision to terminate her contract precluded her from having an opportunity to challenge the results of the School Board's investigation and/or present evidence to contravene its conclusions.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6175

Petitioner's Proposed Findings of Fact

1. Adopted in substance in findings of fact 1.

2. Adopted in substance in findings of fact 2.

3. Adopted in substance in findings of fact 5.

4. Adopted in substance in findings of fact 6.

5. Adopted in substance in findings of fact 6.

6. Rejected as unnecessary and subordinate to findings of fact 6.

7. Adopted in substance in findings of fact 6.

8. Adopted in substance in findings of fact 7.

9. Adopted in substance in findings of fact 2.

10. Adopted in substance in findings of fact 8.

11. Adopted in substance in findings of fact 8.

12. Rejected as unnecessary and subordinate to findings of fact 9.

13. Subordinate to findings of fact 10.

14. Rejected as unnecessary and subordinate to findings of fact 10.

15. Subordinate to findings of fact 10.

16. Subordinate to findings of fact 10.

17. Subordinate to findings of fact 9.

18. Subordinate to findings of fact 9.

19. Subordinate to findings of fact 9.

20. Subordinate to findings of fact 9.

21. Subordinate to findings of fact 10.

22. Subordinate to findings of fact 11.

23. Subordinate to findings of fact 11.

24. Rejected as unnecessary and not established by competent, substantial evidence. The hearsay contents of the School Board's records regarding Respondent cannot serve as a basis of a finding of fact in this proceeding. The only testimony regarding this incident was vague and nonspecific.

25. None submitted.

26. Rejected as unnecessary.

27. Rejected as unnecessary. The facts surrounding this incident were not clearly established in this case.

28. Subordinate to findings of fact 4.

Respondent's Proposed Findings of Fact.

1. Addressed in the Preliminary Statement and in findings of fact 8 and

   14.

2. Addressed in the Preliminary Statement and in paragraph 24 of the

   Conclusions of Law.

3. Adopted in substance in findings of fact 14.

4. Adopted in substance in findings of fact 14.

5. Adopted in substance in findings of fact 8 and 14.

6. Adopted in substance in findings of fact 9

7. Rejected as unnecessary.

8. Adopted in substance in findings of fact 15.

9. Subordinate to findings of fact 14.

COPIES FURNISHED:

Gregory A. Chaires, Esq. Florida Department of Education Professional Practices Services

352 Florida Education Center Tallahassee, Florida 32399

William Du Fresne, Esquire Du Fresne and Bradley, P.A.

2929 S.W. Third Ave., Suite One Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Commission

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006175

Orders for Case No: 92-006175