vs.
Case No. 15-6758TTS
Respondent.
Robert L. Kilbride of the Division of Administrative Hearings by video teleconference on March 16, 2016, at sites in Miami and Tallahassee, Florida.
For Petitioner: Christopher J. La Piano, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Whether Respondent committed misconduct in office or gross insubordination violating Miami-Dade County School Board policies or other provisions of law, and, if so, whether such conduct constitutes "just cause" for a ten-workday suspension from
("MDCPS").
On November 18, 2015, Petitioner, Miami-Dade County School Board ("Petitioner" or "School Board"), took action to suspend Respondent, Priscilla Parris, for ten workdays.
sections 120.569 and 120.57(1), Florida Statutes (2015),1/ and the matter was referred to the Division of Administrative Hearings.
A final hearing was held on March 16, 2016. Petitioner presented the testimony of minor students, D.L., J.F., and A.W.; D.L.'s father; Teacher Makiba Burkes; and Principal Julian E. Gibbs. Petitioner's Exhibits 1 through 4, 10, and 11 were admitted into evidence pursuant to the parties' stipulation.
Petitioner's Exhibit 6, page 38; Exhibit 7, page 44; Exhibit 12, pages 105-107; and Exhibit 13, page 114, were also admitted.
Exhibits 1 through 4, which were admitted into evidence pursuant to the parties' stipulation.
The Transcript of the final hearing was filed with the Division of Administrative Hearings on April 11, 2016. The parties were granted an extension of time until May 6, 2016, to file proposed recommended orders. Both parties' proposed
recommended orders were filed on May 6, 2016, and were considered by the undersigned in preparing this Recommended Order.
Stipulated Facts, Joint Pre-hearing Stipulation, Section E.
At all times material hereto, Petitioner was the duly- constituted school board with the duty to operate, control, and supervise all free public schools within the Miami-Dade County School District, pursuant to Article IX, section 4(b), Florida Constitution, and section 1012.23, Florida Statutes (2013).
In accordance with chapter 120, School Board Policies 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 3213, Student Supervision and Welfare, are adopted
policies of the School Board, which took effect beginning July 1, 2011.
At all times material hereto, Respondent was employed pursuant to a professional service contract as a teacher at Henry
E.S. Reeves Elementary School ("HRES"), a public school in Miami- Dade County, Florida.
At all times material hereto, Respondent's employment was governed by the collective bargaining agreement ("CBA") between MDCPS and the United Teachers of Dade ("UTD Contract"), the rules and regulations of the School Board, and Florida law.
Findings of Fact Established at Hearing
Respondent has been a teacher with MDCPS for approximately 32 years. During that time she has worked at nine different schools. She is presently employed at HRES and has been working there since 2012.
Respondent is certified by the State of Florida to teach elementary school. During the 2014-2015 school year, she was teaching second-grade students at HRES.
Her supervisor, Principal Julian E. Gibbs, testified that MDCPS prohibits corporal punishment and that teachers are never allowed to put their hands on students as a form of discipline.
This policy was reviewed with Respondent during openings of the school, as well as faculty meetings held by Principal Gibbs. Also reviewed at these meetings was the School Board policy against sharing confidential student information with parties other than parents. Pet. Ex. 4.
Principal Gibbs testified that other than incidents where he has had to discipline Respondent in the past, their relationship has been cordial.
For purposes of compliance with progressive discipline and to establish the charge of gross insubordination, three reprimands and an Administrative Review Site
Disposition/Conference were included in the Notice of Specific Charges.
The record reveals that the first reprimand was issued to Respondent on December 18, 2012, by Principal Gibbs. The reprimand directed Respondent to "refrain from inappropriate physical contact/discipline with students" and to adhere to School Board Policies 3210, Standards of Ethical Conduct,
and 3210.01, Code of Ethics. The directives necessary to correct her conduct were explained to her by Principal Gibbs. Respondent acknowledged receipt of this reprimand and directives with her signature. Pet. Ex. 13, p. 114.2/
On March 14, 2013, a Conference for the Record ("CFR") was held with Respondent relating to another incident. It also included her union representatives and Principal Gibbs. At this conference, Respondent was directed to "Immediately refrain from inappropriate physical contact/discipline with students," adhere to School Board policies, particularly 3210 and 3210.01, and also to "conduct yourself . . . in a manner that will reflect credit on yourself and MDCPS." Respondent acknowledged receipt of this CFR summary and directives with her signature. Pet. Ex. 12,
p. 107.
On May 12, 2014, Respondent received another reprimand regarding her personal cell phone ringing during testing procedures.3/ Moreover, Respondent also received a directive to
adhere to School Board policies and to "conduct yourself . . . in a manner that will reflect credit on yourself and MDCPS." Respondent acknowledged receipt of this reprimand and directives with her signature. Pet. Ex. 11, p. 97.
On February 2, 2015, Respondent received yet another reprimand pertaining to her inappropriate physical treatment of students. Specifically, she was given directives and warnings including, but not limited to, "Refrain from using physical means as a form of disciplining and redirecting students," to "conduct yourself . . . in a manner that will reflect credit on yourself and MDCPS," and, again, to adhere to School Board Policies 3210 and 3210.01. Respondent acknowledged receipt of this reprimand and directives with her signature. Pet. Ex. 10, p. 82.
To summarize, prior to the incidents underlying the present case, Respondent was given clear and unmistakable disciplinary directives to refrain from inappropriate physical contact with students on at least three occasions. She had also been repeatedly warned and directed to adhere to School Board Policies 3210 and 3210.01.
Allegations of Misconduct on March 3, 2015
On March 3, 2015, a second-grade student, D.L., was running to the bathroom and clapped her hands in the face of another student as she ran past. D.L. admitted that she was
misbehaving. Respondent thought that D.L. had hit or tried to hit another student.
D.L. testified that Respondent "snatched" her and "slammed" her in the classroom closet where she loudly reprimanded her with the door open. According to D.L., Respondent was "rough" with her, used a "big grip" and a "strong force" that left a mark on her arm.
D.L. stated that her being grabbed by the wrist did not hurt her. Also, while being taken into the closet, D.L. was "100% sure" that she hit her head on something in the closet.
The incident was observed and corroborated by the testimony of Makiba Burkes. Burkes was an adult co-teacher who was teaching in the classroom with Respondent at the time.
Burkes had sent D.L. to use the restroom, because she said she was not feeling well. Along the way, she saw Respondent grab her by the upper arm and take her into the closet. When
D.L. came out, she was "crying profusely."
Burkes testified that the closet that D.L. was forcefully "pulled" into was a walk-in closet and was full of "stuff," including teacher supplies, desks, a refrigerator, and a microwave cart.
She did not see D.L. hit her head on anything.
Furthermore, she heard no yelling, but saw Respondent speaking
close up to D.L. She witnessed no inappropriate physical contact inside the closet between Respondent and D.L.
In Burkes' opinion, the way Respondent grabbed the student's upper arm and pulled D.L. into the closet was not appropriate or necessary, because teachers are not supposed to touch students in that manner.
Burkes admits that her professional relationship with Respondent was not the best and that the two did not get along.4/
Respondent came into the class after Burkes had already spent time with many of the students. Respondent wanted to do things her way, and that was not working because the students had already become accustomed to Burkes' style. As a result, the professional relationship became a "pull and tug situation."
After a while, the students were not listening to Respondent, and Burkes would have to jump in to "demand control of the whole classroom."
According to Burkes, she felt Respondent became frustrated with D.L., and she had seen her become frustrated with other students on other occasions. However, she felt that the frustration she witnessed did not justify putting hands on D.L.
Shortly after this incident, Respondent attempted to call D.L.'s father to report her misbehavior to him. Respondent dialed a telephone number using a number contained in the grade book system. However, without first confirming the identity of
the person on the other line, Respondent began to discuss D.L.'s misbehavior in detail with the other party.
According to Respondent, without asking the name of the person on the other line, she stated, "Mr. L., I'm calling concerning your daughter. And I need you to speak with her." To which the person on the line replied only "Okay."
Respondent then went on to explain in detail D.L.'s disruptive conduct that had just occurred. She then gave the phone to D.L. without further conversation.
When D.L. got off the phone, she advised Respondent, "That wasn't my dad." The person was actually "Jose," D.L.'s father's boss.5/
D.L.'s father testified at the hearing. He offered hearsay statements from his boss, Jose, pertaining to what he was told on the phone by Respondent.6/
Jose was apparently never asked his name by Respondent and was told the "whole situation" about D.L. that day. D.L.'s father was upset and outraged when he learned of this phone call to his boss. He stated that he was "hurt" and that everyone at his job has learned what happened with D.L.
D.L.'s father was so upset by the incident that on March 10, 2015, he sent a letter to the school explaining the situation and his feelings on the matter. Pet. Ex. 6, p. 38.
Respondent claimed that the incident with the telephone call was some type of "set up" or conspiracy against her. Yet, she offered no names or other factual details to support her conclusory allegation.
Allegations of Misconduct on March 11, 2015
On March 11, 2015, Student A.W. was misbehaving. She was standing up out of her seat and throwing paper. In response, Respondent grabbed her by the shirt collar and pushed her to the wall. A.W. testified that it hurt and that the incident made her mad and sad.
D.L. also testified that she saw Respondent "snatch" A.W.'s shirt and "like she just dragged her to the wall" and started talking to her.
Student J.F. also saw Respondent grab A.W.'s shirt collar and put her against the wall, when she was misbehaving. According to J.F., you could "hear it" when A.W. was "put up against the wall hard" by Respondent.
Burkes was also a witness to this incident. She saw Respondent grab A.W. by the front of her shirt and give her a "moderate" push into the wall. Because she considered this to be inappropriate, she reported what she saw to Principal Gibbs.
Respondent testified as to both incidents. Regarding the incident on March 3, 2015, involving D.L., Respondent testified that she was running, passed the classroom table, and
she "like hit at a student." She acknowledged that D.L. had likely asked her co-teacher, Burkes, to go to the restroom.
Respondent claimed that she "gently" led D.L. into the closet to reprimand her because she did not want her to be embarrassed in front of the other students.
Regarding the incident on March 11, 2015, with A.W., Respondent testified that she was standing up out of her desk and throwing paper across the room. She spoke to her and turned back to start working with her group again.
She told A.W. to stand by the wall until she was finished because she had been interrupting. She denied grabbing her by the shirt or collar and pushing her into the wall. According to Respondent, she only uses gentle touches with children.
Respondent claims that she has received so many reprimands from Principal Gibbs that she cannot remember how many. She also claims that she has been under attack by Principal Gibbs since she has been at the school.
Aside from claiming that she has been reprimanded on many occasions by Principal Gibbs, she provided no other facts or details as to how, why, when, or where she has been "under attack" by the principal. She called no witnesses to offer any details or corroboration.
Respondent testified that there are unnamed employees trying to "set her up." However, she offered no substantive facts to support this conclusory allegation, and the undersigned finds it unpersuasive.7/
Respondent testified and acknowledged that it would not be appropriate to grab a student by their collar and pull them towards a wall. According to Respondent, she only touches children gently to direct them where she wants them to go and
sit.
The facts underlying the charge of misconduct and gross
insubordination occurring on March 3 and 11, 2015, were testified to by three students. Their testimony regarding these incidents was corroborated by an adult co-worker, Burkes, who was in the room and observed the incidents. She also prepared a written statement. Pet. Ex. 4, p. 44.
Having assessed the credibility, demeanor, and interests of the witnesses, as well as the weight of the evidence, the undersigned credits and finds more persuasive the version of the facts testified to by the three female students and Burkes concerning how these incidents occurred, over Respondent's testimony to the contrary.
The undersigned finds that Respondent's conduct violated several rules and policies that establish standards of conduct for teachers, namely, Florida Administrative Code
Rules 6A-10.080, Code of Ethics of the Education Profession in Florida, and 6A-10.081, Principles of Professional Conduct for the Education Profession in Florida, and several School Board policies. As such, Petitioner has proven that Respondent committed gross insubordination and misconduct in office and violated School Board Policies 3210, 3210.01, and 3213. Despite fair and proper warning, Respondent defied several clear and simple directives that had been issued to her by Principal Gibbs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this matter pursuant to sections 120.57(1) and 1012.33(1)(a), Florida Statues.
In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See
McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d
DCA 1996); Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau Cnty. Sch. Bd., 629
So. 2d 226 (Fla. 1st DCA 1993).
A disciplinary hearing at the Division of Administrative Hearings before an Administrative Law Judge is a "de novo" administrative proceeding. As such, evidence must be developed and exist in the administrative hearing record to
justify the action contemplated by the agency. See generally
§ 120.57(1)(k), Fla. Stat. ("All proceedings conducted under this subsection shall be "de novo."), and Fla. Dep't of Transp. v.
J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
Moreover, a "de novo" proceeding is intended to formulate final agency action by an agency and is not simply to review action taken earlier or preliminarily. McDonald v. Dep't
of Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977); Beverly
Enters.-Fla., Inc. v. Dep't of HRS, 573 So. 2d 19 (Fla. 1st DCA 1990); and Lawnwood Med. Ctr. v. Ag. for Health Care Admin., 678
So. 2d 421 (Fla. 1st DCA 1996).
A formal administrative hearing affords the parties a full opportunity to test the agency's policies and rules. In section 120.57(1) proceedings, the Administrative Law Judge can "independently serve the public interest by providing a forum to expose, inform and challenge agency policy and discretion." Gopman v. Dep't of Educ., 908 So. 2d 1118 (Fla. 1st DCA 2005),
citing State Ex Rel. Dep't of Gen. Servs. v. Willis, 344 So. 2d 580, 591 (Fla. 1st DCA 1977).
With that backdrop in mind, an Administrative Law Judge undertaking a "de novo" review under section 120.57 is not required to defer to the agency's proposed penalty or discipline--to do so would constitute an abandonment of the Administrative Law Judge's responsibility and ignores the law
obligating the Administrative Law Judge to undertake an independent review and recommendation. He or she must make an independent review and recommendation as to the proper disposition of the case.
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, 66
So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653
So. 2d 489, 491 (Fla. 1st DCA 1995).
Other principles of law are equally important. An agency or school board's interpretation of its own rules and policies is entitled to deference. Beach v. Great Western Bank,
692 So. 2d 146, 149 (Fla. 1997).
Although this deference is not absolute, courts should defer to the agency unless the agency's construction of its rules or policies amounts to an unreasonable interpretation, or is clearly erroneous. Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d
492 (Fla. 5th DCA 2000); Legal Envtl. Assistance Found., Inc. v.
Bd. of Cnty. Comm'rs. of Brevard Cnty., 642 So. 2d 1081, 1083-84
(Fla. 1994).
Florida Administrative Code Rule 6A-5.056(4) defines gross insubordination as 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."
Gross insubordination has been found to constitute sufficient cause to terminate an employee. Dolega v. Sch. Bd. of Miami-Dade Cnty., 840 So. 2d 445 (Fla. 3d DCA 2003). See also
Johnson v. Sch. Bd. of Dade Cnty., 578 So. 2d 387 (Fla. 3d DCA 1991).
Applicable Rules, Laws, and School Board Policies
Under rule 6A-5.056, "Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
The Code of Ethics of the Education Profession in Florida, rule 6A-10.080, provides as follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a 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.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct.
The Principles of Professional Conduct for the Education Profession in Florida, rule 6A-10.081, provides, in relevant part, as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
* * *
(i) Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
Obligation to the public requires that the individual:
* * *
(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
School Board Policy 3210, Standards of Ethical Conduct, provides, in relevant 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:
1. teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and
employing approved methods of instruction as provided by law and by the rules of the State Department of Education;
* * *
3. make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety;
* * *
not intentionally expose a student to unnecessary embarrassment or disparagement;
not intentionally violate or deny a student's legal rights;
* * *
11. keep confidential personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law;
* * *
17. maintain honesty in all professional dealings;
* * *
not use abusive and/or profane language or display unseemly conduct in the workplace;
not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable efforts to assure that each
individual is protected from such harassment or discrimination[.]
School Board Policy 3210.01, Code of Ethics, provides in relevant part:
All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics.
Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001):
The educator values the worth and dignity of every person, 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.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * * Conduct Regarding Students Each employee:
A. shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety;
* * *
shall not intentionally expose a student to unnecessary embarrassment or disparagement;
shall not intentionally violate or deny a student's legal rights;
shall not harass or discriminate against any student or any basis prohibited by the Board or law and shall make reasonable effort to assure that each student is protected from harassment and discrimination;
* * *
I. shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
School Board Policy 3213, Student Supervision and Welfare, provides, in relevant 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 school property.
The UTD Contract, to which both parties are bound, recognizes the concept of progressive discipline. However, by the express language of the CBA, progressive discipline is utilized when the School Board "deems it appropriate." Pet. Ex. 1, p. 1. When applied, the degree of discipline must be related to the seriousness of the offense.
In the present matter, Respondent had been directed and admonished on several occasions by Principal Gibbs and the school administration to refrain from inappropriate physical contact with students.
Respondent had previously received three reprimands, two of which pertained to physical contact with students. Respondent was also issued directives pertaining to physical contact with students at a CFR. Respondent negligently disseminated confidential student information to a third party.
On the heels of these warnings, she repeatedly put her hands on students as a form of correction or control. This misconduct repeated itself again, during incidents on March 3 and 11, 2015, as described above.
The undersigned concludes that during the two incidents, Respondent's "grabbing" and "snatching" the arm or shirt collar of a student and forcefully "pulling" a student into a closet or up against a wall was contrary to the warnings and
directives she received and, therefore, constituted misconduct and gross insubordination.
It should have been abundantly clear to Respondent that despite her frustration with the class and angst with these particular female students, she was ignoring and violating the directives and warnings she had been given when she put hands on them.
The School Board's conclusion that this constituted misconduct and gross insubordination was not an unreasonable interpretation of its rules and policies, rule 6A-5.056, nor was it clearly erroneous. Purvis, supra.
Based on the evidence presented, the undersigned concludes that the School Board proved that Respondent's conduct constituted misconduct in office and gross insubordination.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board discipline Respondent with a ten-day unpaid suspension as previously proposed by the School Board.
Leon County, Florida.
ROBERT L. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2016.
1/ References to Florida Statutes are to the 2015 version, unless otherwise indicated.
2/ Most of the discipline and reprimands meted out to Respondent during her tenure at this school involve a troubling pattern of misconduct related to inappropriate or forcible physical contact with young students. See generally Pet. Exs. 10 and 11.
3/ While the conduct is not similar to the allegations alleged in the present charges against her, the reprimand serves to justify the acceleration of progressive discipline against the employee.
4/ It is noteworthy that Burkes is the union steward and chose to testify against Respondent, because, in her words, "the safety of the students was involved in that [sic]."
5/ Burkes and Principal Gibbs confirmed that there is a School Board policy that prohibits sharing confidential student information with third parties who are not parents.
6/ It was admissible to supplement and explain other admissible testimony and as an admission under section 90.803(18), Florida
Statutes. The undersigned found the information to be sufficiently reliable.
7/ While Respondent testified and believes some of the present charges against her are part of a "set up," she does not believe Principal Gibbs was part of the telephone call snafu on March 3, 2015. However, she felt Principal Gibbs may have been part of the group trying to set her up. See generally Tr., p. 142.
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Christopher J. La Piano, Esquire Miami-Dade County School Board
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
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.
