vs. )
Respondent. )
Case No. 11-1010TTS
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (DOAH), on July 5, 2011, by video teleconferencing at sites located in Tallahassee and Miami,
Florida.
For Petitioner: Christopher J. La Piano, Esquire
Herdman and Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Respondent, Caridad Valdes, was employed by the Miami-Dade County School Board (School Board) as a pre-kindergarten (pre-K) autistic teacher for the 2009-2010 school year. On May 27, 2010, the School Board received an anonymous letter accompanied by a DVD containing video footage of Respondent's classroom captured during a one-hour period on an unknown date. After receiving and viewing the DVD, the School Board began an investigation of Respondent that culminated in the recommendation for the termination of her employment.
Respondent timely petitioned for a formal administrative hearing before DOAH, which was conducted on July 5, 2011.
At the hearing, Petitioner presented the testimony of Marcia Dominguez, Maritza Garcia, Claudia Monsalve, and Dolores Mendoza; and offered 19 exhibits, which were accepted into evidence. Respondent presented no testimony and offered no exhibits.
A Transcript was filed on July 25, 2011. Petitioner and Respondent filed their proposed recommended orders on September 16, 2011.
References to statutes are to Florida Statutes (2010) unless otherwise noted.
At all times material to this matter, Petitioner was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to article IX, Section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes.
At all times material to this matter, Respondent was employed as a teacher at J. W. Johnson Elementary (Johnson Elementary), a public school in Miami-Dade County, Florida.
At all times material to this matter, Respondent's employment was governed by the collective bargaining agreement (CBA) between Miami-Dade County Public Schools and the United Teachers of Dade (UTD), the rules and regulations of the School Board, and Florida law.
Respondent holds a professional services contract.
Respondent's employment can be terminated for "just cause" as defined by the School Board in the Notice of Specific Charges.
Prior to the 2009-2010 school year, Respondent was assigned as a pre-K teacher for non-disabled students. Due to decreased enrollment, Johnson Elementary lost unit allocations for teaching positions that year. In order to prevent some teachers from losing their jobs, reassignments were made of existing personnel to new positions.
Of the persons Johnson Elementary Principal Maritza Garcia had available in her pool of teachers, Respondent was the most qualified person to teach a pre-K class of autistic students. Such students are qualified as being "exceptional," and the education of such students is commonly referred to as "exceptional student education" or "ESE." As such, during the 2009-2010 school year, Respondent was reassigned to teach a
pre-K ESE class, which was comprised of autistic students.
The autistic students are approximately four to five years old. They cannot speak and express themselves, making them even more vulnerable than ordinary students of similar age.
Respondent was certified to teach these pre-K ESE students.
In addition to holding the proper certification, Respondent was given the opportunity to participate and did participate in classes and trainings, both before the school year began and during the school year, regarding the instruction of ESE students with a particular emphasis on autistic students.
Respondent was also assigned a mentor named Claudia Monsalve who provided her with hands-on assistance in the classroom, giving her guidance and support in the instruction of autistic ESE students. Ms. Monsalve met with Respondent one to two times per month and gave her written feedback on how to
develop and improve her instruction methods. Ms. Monsalve also administered the pre-school year trainings.
The support and training given to Respondent was extensive and no less than any other would have received as a result of being assigned to a similar classroom situation.
Although not testifying on her own behalf, Respondent submits that she was "essentially abandoned" in the classroom with "no prior training." This argument is not supported by the record.
Throughout the 2009-2010 school year, Respondent never requested additional help in her classroom from either the school administrators or Ms. Monsalve. According to
Ms. Monsalve, it was a common occurrence for teachers to request such assistance, but Respondent made no such requests.
Had Respondent requested additional support, she could have been provided additional in-service training or the administration could have assigned additional paraprofessionals to her classroom. Absent any requests, this additional help was not provided.
In her time mentoring Respondent, Ms. Monsalve never saw her mistreat a child.
On May 27, 2010, the principal's office received a telephone call stating that a package would arrive in the principal's mail that day.
A package did arrive, was opened by the principal, and contained both a letter and a DVD. The unsigned letter contained criticisms of Respondent's pre-K autistic class, alleged "verbal and physical abuses" having occurred in the classroom, and referenced the enclosed DVD in support of the allegations.
The person or persons who sent the letter have not been identified. School administration denies that it planted the camera that recorded the DVD, and it is more likely than not that a concerned parent placed the camera in the classroom. It is believed the recording was made in May 2010 from the dress of the students and other factors identified by administration.
The principal viewed the DVD, which is approximately one hour in length. As a result of viewing the images on the DVD, and out of concern for the safety and welfare of the children in the class, the principal asked the school police to conduct an investigation.
By letter dated June 3, 2010, the principal notified Respondent that she was being investigated based on the conduct shown on the DVD. The complainant was listed as unknown.
One of the paraprofessionals assigned to Respondent's classroom, Marcia Dominguez, viewed the DVD and testified the footage was recorded on a Wednesday, in early to mid-May 2010. She determined this based upon her appearance in the video, the
children present in the video, the state of the classroom, the clothing she and the other paraprofessional were wearing, and the activities occurring that day in the classroom on the day depicted on the DVD.
The DVD shows numerous inappropriate actions taken by Respondent, including yelling and scolding the students, using harsh language and referring to their disabilities in a derogatory manner; pulling, jerking, swatting, and striking the students (one on the hand and forearm, one on the bottom), with both an open hand and a stick or classroom pointer; and brandishing a ruler and a stick, which she used to strike classroom furniture and intimidate the students.
In addition to what can be viewed on the video, there are instances of other inappropriate behavior that can only be heard or inferred by the viewer. A sound like slapping can be heard, although not seen due to the camera being obscured. It is reasonable to assume the slapping is either of a child or furniture in the classroom.
The behaviors and actions exhibited by Respondent in the video are beyond any reasonable explanation and depict Respondent as not being in control of her classroom. None of the actions described above may be considered appropriate behavior for a teacher.
At the conclusion of the investigation, a conference was held between one of Petitioner's administrators, Respondent, and Respondent's representative. At that conference, Respondent was directed to refrain from contacting any parties involved in the investigation.
Respondent violated this directive and called Ms. Dominguez on numerous occasions. Ms. Dominguez told
Respondent she could not discuss the case with her while it was under investigation.
The result of the investigation was a probable cause finding against Respondent for violations of the School Board and State Board of Education rules. Based upon the results of the investigation, the superintendent of schools recommended termination of Respondent's employment.
The CBA specifically addresses the procedures for handling anonymous complaints made against School Board employees.
Petitioner took no steps to ascertain the identity of the complainant who authored the anonymous letter and provided the DVD to the principal.
The CBA clearly states that no investigation of allegations of misconduct against an employee shall be made on the basis of an anonymous complaint.
The information contained in the anonymous letter and DVD served as the initial basis for the investigation of Respondent. That information was corroborated by the testimony of Ms. Dominguez, who was present in the classroom when the DVD was made.
The DVD received by the principal along with the anonymous letter also serves as corroboration of the letter itself. The DVD gives life to the allegations made by the unknown author of the letter.
The anonymous letter, by itself, cannot serve as the sole basis for investigating Respondent according to the explicit terms of the CBA.
While the source of the DVD is unknown, the evidence supports the fact that the DVD is, in fact, a depiction of Respondent's classroom in May 2010. This is corroborated by the presence of Ms. Dominguez in the classroom and on the video, as well as her testimony at hearing.
Dolores Mendoza, Petitioner's supervisor for the pre-K program for children with disabilities, criticized the behavior of Respondent based upon the DVD which was authenticated by the testimony of Ms. Dominguez, the paraprofessional assigned to Respondent's classroom. She candidly admitted that if all teachers were secretly videotaped, most would be seen yelling or
screaming at one time or another in class. She admitted that she had yelled and screamed in class on occasion.
Teaching pre-K autistic children is difficult.
Effectively teaching pre-K autistic students is enhanced by years of classroom experience, and is not honed through only a once-a-month classroom visit or monthly mentoring meetings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat.
A district school board employee against whom a disciplinary proceeding has been initiated is entitled to written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1150-51 (Fla. 3d DCA 1983).
Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify suspension, those are the only grounds upon which such
discipline may be predicated. See Luskin v. Agency for Health Care Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v.
Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993).
In this proceeding, Petitioner seeks to terminate Respondent's employment. Petitioner bears the burden of proof, and the standard of proof is by a preponderance of the evidence. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996) (citing Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990)).
Respondent is an instructional employee as defined by section 1012.01(2), Florida Statutes. Petitioner has the authority to suspend or terminate instructional employees pursuant to sections 1012.22(1)(f) and 1012.33(6)(a).
Respondent is a member of the UTD. The UTD and School Board are parties to a CBA. Article XXI, Subsections (E)(1)
and (3) of the CBA state:
The Board shall take steps to ascertain the identity of the complainant, prior to the authorization of an investigation. No investigation of an allegation against an employee shall be made on the basis of an anonymous complaint.
* * *
3. In all Board investigations which may lead to suspension or dismissal of an
employee, only the Superintendent or his/her designee may authorize such an investigation. No investigation shall be authorized on anonymous information, uncorroborated by any other supporting data. . . . .
In imposing discipline on employees, the school board is required to act in a manner consistent with law and the provisions of CBAs entered into with bargaining unit representatives of its employees. See Chiles v. United Faculty
of Fla., 615 So. 2d 671, 672-73 (Fla. 1993) ("once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the State and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); and Hillsborough Cnty. Governmental Emps. Ass'n v. Hillsborough Cnty. Aviation Auth., 522 So. 2d 358, 363 (Fla. 1988) ("We hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours or terms and conditions of employment . . . ."). See also Miami- Dade Cnty. Sch. Bd. v. Steven Newbold, Case No. 03-3217 (Fla.
DOAH Aug. 13, 2004; Miami-Dade Cnty. Sch. Bd. Oct. 20, 2004); and Broward Cnty. Sch. Bd. v. Charlene Rebecca Blackwood, Case No. 05-2288 (Fla. DOAH Mar. 7, 2007; Broward Cnty. Sch. Bd.
Jan. 8, 2008).
The evidence is undisputed that the letter received by the principal was from an anonymous source; the DVD received by the principal was from an anonymous source; and the complainant remains anonymous. Under the clear language of the CBA, the anonymous complaint alone would not constitute sufficient evidence to proceed with the investigation that ultimately led to the proposed termination of Respondent's employment. The existence of the DVD and the testimony of Ms. Dominguez as a witness to the content of the DVD, however, corroborate the contents of the letter and serve as sufficient evidence to impose discipline upon Respondent.
Respondent makes a valid point when she argues that she should not be subject to investigation and discipline based solely upon an anonymous complaint. To allow such actions to proceed would result in a denial of due process and the right to confront her accusers. The DVD and the testimony of
Ms. Dominguez, however, change this from a case of a standalone anonymous complaint to a complaint corroborated by other evidence. The content of the DVD cannot be ignored. The actions of Respondent depicted on the DVD, regardless of the fact that not everything was seen due to some obstruction during part of the recording, does not negate the fact that Respondent acted improperly and in violation of School Board rules and Florida law in the handling of her classroom. The testimony of
Ms. Dominguez, who was physically in the classroom when the DVD was recorded, cannot be ignored.
Both the eyewitness and the video recording prove that Respondent had lost control of her class and used inappropriate methods in her attempts to regain control. Respondent had previous training on how to handle the situations arising in her classroom, and she further had the ability to request additional aid in her class if she was unable to handle matters.
Had an anonymous DVD appeared in the principal's office depicting a horrific violent crime or one involving sexual contact between a teacher and a student, it is hard to imagine that the School Board would not investigate the matter further. In that case, there would also be a victim who could testify on his or her behalf. In this case, the DVD depicts improper conduct by Respondent, is corroborated by another staff person in the classroom, and involves students who are largely nonverbal and cannot communicate any improper behavior to the appropriate authorities. It is inconceivable that the CBA was intended to allow vulnerable children to be hurt without granting the School Board the authority to investigate and take appropriate action.
Respondent argues the unfairness of taking a video of one hour in the life of a first-year teacher of autistic students and using it to draw conclusions about her overall
teaching abilities. The video shows no less than six separate acts the undersigned deems inappropriate teaching practices.
Respondent smacks a ruler on the table within inches of a student; yells repeatedly at several of the students; smacks one student on the arm with a stick or rod while yelling at him; pulls a student by the arm then leads him away out of view of the camera; gives a student a smack on the bottom; and slaps another student on the hand with a cardboard block, then takes the blocks away from him. If this is the activity taped in one hour, one can only wonder how much further improper activity would have been filmed had the camera run the entire day.
Conclusions Regarding the Specific Charges
In its Notice of Specific Charges filed on March 30, 2011, Petitioner made five separate charges to support its disciplinary action against Respondent: misconduct in office; immorality; violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties; violation of the School Board Rule 6Gx13-4A-1.213,Code of Ethics; and violation of School Board Rule 6Gx13-5D-1.07, which prohibits corporal punishment.
Rule 6B-4.009(3) provides that:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in
Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in
Rule 6B-1.006, F.A.C., which is so serious
as to impair the individual's effectiveness in the school system.
The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides:
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, of students, of parents, and of other members of the 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 6B-1.006, provides, in relevant part:
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.
* * *
(5) Obligation to the profession of education 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.
Respondent used poor judgment by engaging in behavior that was both physically harmful and emotionally degrading to her young autistic students. Her professional duties and obligations were largely ignored or lost in a flurry of anger and frustration in dealing with her admittedly difficult students. She not only failed to make a reasonable effort to
protect her students from harmful conditions, but she violated their rights by subjecting them to physical and mental harm, harassment, and embarrassment in the classroom. Respondent neglected to ask for help, either from those other adults present in the classroom, or from her school's administration.
These activities, taken together, show a complete lack of judgment or control on Respondent's behalf and constitute misconduct in office that supports dismissal from employment with the School Board.
Rule 6B-4.009(2) provides that:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Respondent's conduct was inconsistent with standards of public conscience and good morals. The DVD demonstrated her total lack of control of her classroom, and a disregard for the basic rights and feelings of her special needs students. Her behavior in the classroom has substantially impaired her ability to serve her school and the community as a teacher.
Respondent's behavior, based upon the preponderance of the evidence, constitutes immorality in her conduct and justifies her dismissal from employment with the School Board.
School Board Rule 6Gx13-4A-1.21 provides, in relevant
part:
I. Employee Conduct
All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
* * *
V. Instructional Personnel
Members of the instructional staff, subject to the rules of the State and District Rules, shall 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.
Members of the instructional staff shall keep abreast of development in their subject area through attendance at professional meetings, acquaintance with professional publications, and participation in inservice activities.
Respondent's behavior as depicted on the DVD discredits her and the school system. Her conduct was unseemly, and the language she used with her students was abusive.
Respondent was given the training, classes, and hands- on assistance she needed to be successful in her classroom and to treat her students with the proper respect and kindness. Despite this training, and the presence of other adult aides to assist her in teaching her class, Respondent presided over a classroom best described as chaotic. As a result, her students suffered both physical and mental harm.
Respondent's conduct, as proven by a preponderance of the evidence, constitutes violations of School Board rules concerning Responsibilities and Duties, and constitutes just grounds for dismissal from employment with the School Board.
School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in relevant part:
I. INRODUCTION
All members of the School Board of
Miami-Dade County, Florida, administrators, teachers and all other employees of
Miami-Dade County Public Schools, 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 Miami-Dade County Public Schools students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 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.
Section III of the School Board's Code of Ethics sets forth the fundamental principles upon which the code is predicated. These fundamental principles are cooperation, fairness, honesty, integrity, kindness, pursuit of excellence, respect, and responsibility. School Board Rule 6Gx13-4A-1.213. Pursuant to the rule, each employee "agrees and pledges":
To abide by the Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his or her actions.
To avoid conflict of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the delivery of job duties.
School Board Rule 6Gx13-4A-1.213 sets forth Conduct Regarding Students. The relevant provisions are as follows:
As set forth in the Principles of Professional Conduct for the Education Profession in Florida, each employee:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or 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 on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
Respondent's conduct failed to provide a safe and high-quality education for her students. Her judgment and behaviors were poor and demonstrated neither dignity nor compassion for her students.
Respondent's conduct, as proven by a preponderance of the evidence, constitutes violations of School Board rules, specifically the Code of Ethics, and is just grounds for dismissal from her employment with the School Board.
School Board Rule 6Gx13-5D-1.07 strictly prohibits corporal punishment. To control disruptive behavior, the rule provides for the use of "counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement." Further, suspensions and expulsion are available when more severe forms of discipline are warranted.
Despite having been trained in methods of alternative control of discipline for students, Respondent chose not to employ those methods, but engaged in behavior that involved yelling, pulling of arms, slapping, and even spanking of her autistic students.
Respondent's conduct, as supported by a preponderance of the evidence, proves she violated the School Board's
prohibition against corporal punishment, and constitutes just grounds for dismissal from her employment with the School Board.
Based upon a preponderance of the evidence produced at hearing, Respondent is found to have violated numerous provisions of the state and local rules governing the School Board and its employees. Her conduct in the teaching of a class of special needs students warrants dismissal from her employment with the School Board.
sustaining the termination of Respondent's employment.
DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2012.
Herdman and Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Christopher J. La Piano, Esquire Miami-Dade County School Board
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
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.
