STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1074

)

BERNICE SCHLECKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 5, 6 and 7, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: Phyllis O. Douglas, Esquire

Assistant School Board Attorney

Suite 200, 1410 North East 2nd Avenue Miami, Florida 33132

For Respondent: Donald Eugene Mason, Esquire

Tew & Spittler

One Biscayne Tower, Suite 1970 Two South Biscayne Boulevard Miami, Florida 33131

ISSUES

At issue herein is whether or not the Petitioner, Dade County School Board (sometimes referred to as School Board or Board), carried its burden of proof to sustain its suspension and requested dismissal of the Respondent, Bernice Schlecker, on grounds of alleged incompetency, willful neglect of duty and/or gross insubordination as set forth and defined in Subsection 231.36(6), Florida Statutes. Also at issue is whether or not the Respondent breached her employment contract with the Petitioner and is therefore subject to dismissal based on her refusal to be examined by a psychiatrist approved by the School Board.

FINDINGS OF FACT

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

1. Based upon a recommendation by the Superintendent, the School Board of Dade County, Florida, suspended the Respondent, Bernice Schlecker, from her employment as a teacher at Shadowlawn Elementary School on May 24, 1978.

   Respondent has been employed as a teacher for approximately seventeen (17) years. The Board further proposed to dismiss the Respondent based on its contention that she is unable to impart an education to her students; exhibited a lack of control over students during her classes; failed to prepare lesson plans; used poor judgment respecting the disciplining of students; failed to carry out School Beard plans and policies; failed to submit to a requested psychiatric examination and was excessively absent from her teaching position. This case was initiated with the Division of Administrative Hearings based on Respondent's request for a hearing on the matter of her suspension and the Petitioner's proposed dismissal.

   
   

2. For the two school years immediately preceding her suspension, Mrs. Schlecker was absent from her duties with the School System more often than she was present. In this regard, answers to Interrogatories indicate that the Respondent was absent for a total of approximately twelve (12) days from August to January 3 during the 1976-77 school year and that she requested and was granted a leave of absence on January 4 through the end of the school year in June of 1977. During the 1977-78 school year, Respondent was absent a total of approximately one hundred (100) days.

   
   

3. The testimony of several of Respondent's supervisors during the two- year period prior to her suspension indicates that Respondent often reported for work late; that she often left early or during the workday sometimes with and other times without permission from her supervisors.

   
   

4. The primary causes of Respondent's absences during the two years prior to her suspension was back pain, anxiety and depression. Dr. Lester A. Russin, Respondent's orthopedic surgeon, testified that he did not foresee Respondent's back problem improving much because she refused to follow medical advice. Additionally, Respondent's personnel records reflect that she suffered from a psychiatric disorder which is of a long-standing nature.

   
   

5. School System administrators testified during the hearing that Respondent's chronic absenteeism results in additional expenditures for the School System inasmuch as substitute teachers are needed when absences are occasioned by an illness warranting sick leave with pay. Additionally, the administrators indicated that the educational program is disrupted when the regular classroom teacher is absent.

   
   

6. Respondent's co-workers testified that she was continuously unable to control her students' conduct during classes. Respondent's supervisors opined that this lack of control was in large part due to Respondent's lack of organization and failure to prepare lesson plans. Although required to prepare and follow lesson plans, evidence reveals that often Respondent prepared inadequate plans or no plans whatsoever. Efforts on the part of the School System to assist Respondent in her areas of weakness were unavailing. For example, during the 1977-78 school year up until her suspension, Respondent was assigned to Shadowlawn Elementary School. Dr. David Felton, Principal; Ms. America Bermudez, the Assistant Principal; and two teachers from the school testified that her classes were totally out of control most of the time. Testimony in the case indicates that students jumped in and out of windows and left the classroom at will. A group of students repeatedly crawled under Respondent's portable classroom and lit matches. Respondent often called upon other staff members to control her class or to supervise her class while she left, and the noise level emanating from Respondent's classroom was often loud enough to distract other teachers. In this regard, a faculty advisory committee made up of Respondent's coworkers vehemently complained about Respondent to the

   Principal. Members of the advisory committee voiced their concern that the students in Respondent's classroom were in physical jeopardy as well as being deprived of an education due to Respondent's lack of classroom control.

   
   

7. During this period, Respondent requested assistance from the central office in bringing her class under control or to remove unruly students. Such requests were complied with by the administration.

   
   

8. Additionally, the administration of Shadowlawn Elementary School attempted to assist Respondent by advising her of methods to improve her instruction and classroom control. To further this end, Respondent was requested to draft detailed plans and to submit these to Assistant Principal Bermudez for review. According to Ms. Bermudez, Respondent, although complying with her request to submit the plans, did not fully comply inasmuch as the plans were not at all detailed. Ms. Bermudez testified that several other recommendations made by her were met by tearfulness, hysteria and other nonproductive conduct and acts by Respondent.

   
   

9. Nearing the end of the school year, Dr. Felton and Respondent agreed that she should receive assistance from an expert teacher. To achieve this, Ms. Evelyn Looney was called in to assist. Ms. Looney's testimony is that she found Respondent's classroom in total havoc and that Respondent often appeared "spaced out". Ms. Looney noted that Respondent left the classroom while she was showing her how to teach a lesson. Based on her observation and recommendations of Respondent, Ms. Looney opined that Respondent was an incompetent teacher and would not benefit from any amount of remediation. Subsequent visits to Respondent's classroom by Ms. Bermudez and Principal Felton revealed no improvement in Respondent's lesson presentation or classroom control. Approximately one-half of Respondent's first grade class at Shadowlawn were retained the following year.

   
   

10. In this regard, Respondent contended that her class was larger then normal in the assignment of pupils with behavioral and other learning disabilities. However, first grade teacher Nancy Sturtz testified that when she taught the same students the following year, she found that although they were initially disruptive, they quickly calmed down and responded to instructions.

    
    

11. For the three years preceding Respondent's assignment to Shadowlawn, she was employed at North Beach Elementary School. For the last two years of this period of time (1975-76 and 1976-77), her principal was Dr. Amy Dansky.

    
    

12. Dr. Dansky initially assigned Mrs. Schlecker to assist other teachers by tutoring all groups rather than to teach an entire class. This tutorial function had been performed by Respondent during the 1974-75 school year. Respondent's fellow teachers unequivocally advised Dr. Dansky that Respondent was more disruptive than helpful and they refused offers of assistance from her.

    
    

13. During the spring of 1976, a sixth grade teacher at North Beach became ill and requested leave. Respondent was assigned to take over her classroom. Dr. Dansky's testimony is that Respondent lacked any classroom control and that turmoil was rampart during the period in which Respondent stood in for the ill teacher. At the conclusion of the 1975-76 school year, Dr. Dansky had a conference with the Respondent and together they worked out a program whereby Respondent would improve her performance for the upcoming school year (1976-77). Respondent was assigned to the sixth grade class for this school year and Assistant Principal Gwendolyn Grant was assigned to assist her.

14. Although Respondent was requested to submit lesson plans at North Beach, she often failed to do so and on those occasions when plans were submitted, they were often deficient. Respondent's behavior at North Beach was similar to her behavior at Shadowlawn and attempts to assist her were met with the same inappropriate, unproductive responses.

    
    

15. Ms. Dena Feller, an instructor who was situated across the hall from Respondent, testified that Respondent's classroom was generally in havoc and that on two occasions she was required to run into Respondent's classroom and remove two different students from second story windows from which they were about to jump. Ms. Feller was also required to bring Respondent's class back under control on many occasions and finally complained to Dr. Dansky about the situation. In addition to the complaints by other teachers, parents of students at North Beach also complained and, based on such complaints, Dr. Dansky removed twelve (12) students from Respondent's classroom. Respondent also contends that at North Beach she was assigned a disproportionate number of students with discipline and other behavioral problems. In this regard, the testimony of other witnesses dispute Respondent's claim.

    
    

16. During the preceding year, Respondent was assigned as a reading teacher under the supervision of Leonard Greenbaum. Respondent was assigned to work as a team teacher and during this time other team members complained to Mr. Greenbaum respecting Respondent's failure to carry her share of the workload. Based thereon, Respondent was assigned to tutor.

    
    

17. Initially during the 1973-74 school year, Respondent was assigned to Floral Heights Elementary School. The Principal, Ms. Rowena Sutton, testified that Respondent worked well supervising small groups but that her absences and tardiness coupled with crying, inordinate amounts of time spent on the telephone resulted in her (Ms. Sutton's) request that Respondent be reassigned from Floral Heights.

    
    

18. Respondent was next assigned to Flagler Elementary School although she failed to report on the designated date. Again, Respondent's work hours were erratic and she often reported tardy or left the building early, without permission. While at Flagler, Respondent failed to prepare lesson plans and while it was evident that she spent a great amount of time preparing to teach, she never was able to impart any instructions to students. Ms. Wood, the Principal at Flagler Elementary School, advised Mr. Greenbaum that Respondent was not considered an asset to the school.

    
    

19. Respondent was next assigned to Douglas Elementary School. The Principal, Mr. Donald Oliver, observed Respondent's classroom on numerous occasions and he testified that Respondent's classroom was, in general, chaotic and that Respondent, while expressing familiarity with the materials, was never able to teach the students during his observance of her class. At the conclusion of the 1973-74 school year, Mr. Greenbaum did not recommend Respondent to continue as a reading teacher. Respondent's personnel file reflects that she has taught at approximately ten (10) schools during the seventeen (17) years that she has taught in Dade County, and her annual evaluations, on average, failed to meet the minimum passing level. (Petitioner's Exhibit 1.)

    RESPONDENT'S FAILURE TO SUBMIT TO A PSYCHIATRIC EXAMINATION

    
    

20. The parties stipulated that the contract signed by Respondent in 1959 is the continuing contract in effect between the parties. Article 24, Section I, paragraph 4 of said contract provides as follows:

    
    

    The employee further agrees that the party of the first part shall have the right at any time during the term of this contract, to require that the party of the second part shall submit to either a physical or psychiatric examination by at least two qualified physicians or psychiatrists appointed by the party of the first part. The party of the second part agrees to submit to this examination, if requested, and to allow the report of the said physicians or psychiatrists to be submitted to the party of the first part. . .Failure of the employee to fulfill this contract, or to carry out the lawful provisions thereof, unless prevented from so doing by reason of personal illness or other just cause, or unless released from the contract by the county board, shall constitute sufficient grounds for the termination of the contract on the part of the county board.

    
    

    Additionally, the contract provides under Subsection (a) that:

    
    

    At all times the choice from among state licensed physicians, psychologists, psychiatrists, shall be made by the employee from a list provided by the employer. No employee shall be compelled to submit to any test or examination not required of all employees of that classification without a written statement of the need for such examination.

    
    

21. Petitioner, in its Notice of Charges, stated in writing that it was the Board's position that Respondent was emotionally unstable. Based thereon, it is found that such statement provides a need for the examination. Respondent failed and refused to submit for examination by a psychiatrist from the list provided by the School Board.

    
    

22. Without question, the Respondent appears to be a very dedicated teacher and spends a great amount of time preparing for instruction. This preparation includes time spent preparing lesson plans at home. Additionally, the parents of numerous students which Respondent had taught expressed their belief that their children had progressed while they were students in Respondent's classroom. Respondent exemplified a great deal of care and concern for the well being and educational needs for students. Petitioner, by its administrative officials, does not contest Respondent's concern for the educational needs of her students. However, what is at issue, is Respondent's failure to impart, through a structured educational setting, a planned method for teaching students. In this regard, the evidence revealed that Respondent's

    efforts fall short of the mark required of teachers employed by Petitioner. For this reason, I am forced to recommend that the Petitioner's suspension of Respondent be upheld. Further, in view of Respondent's failure to submit to a psychiatric examination as requested by Petitioner, the Respondent breached her obligation to submit to psychiatric examination on request by the Petitioner.

    In view thereof, additional basis exists to support Petitioner's suspension of Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

25. The School Board established, by competent and substantial evidence, that Respondent, Bernice Schlecker, was neglectful of her duties; insubordinate to her superiors and generally reflected incompetence as a teacher.

    
    

26. Respondent's absences, notwithstanding the fact that most were legitimate, considered with the fact that there is no reason to believe that the chronic absenteeism will cease and the fact that these absences disrupt the business of the School System and cause hardship to the taxpayers as well as Respondent's students, is sufficient grounds for dismissal of Respondent even had she not been found to be incompetent, neglectful, and insubordinate. Scott

    v. Fetzer Company, 69 L.A. 18 (1977).

    
    

27. By failing and refusing to submit herself to a psychiatric examination by a psychiatrist recommended by the School System, Respondent has failed to comply with her contractual agreement with the School Board and this, in and of itself, is grounds for dismissal.

RECOMMENDATION

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

RECOMMENDED:

That the suspension of Respondent, Bernice Schlecker, be SUSTAINED. Additionally, it is recommended that the Respondent be offered an option to resign from the School System within five (5) days from the entry of the Board's final order. Absent such resignation by Respondent, it is recommended that the Respondent be dismissed from her employment with the Dade County School Board.

RECOMMENDED this 25th day of October, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1979.

ENDNOTE

1/ Pursuant to leave, the parties were allowed through October 18, 1979, to file proposed recommended orders which wore received and considered by me in preparation of this Recommended Order.

COPIES FURNISHED:

Phyllis O. Douglas, Esquire

Suite 200, 1410 North East 2nd Avenue Miami, Florida 33132

Donald Eugene Mason, Esquire Tew & Spittler

One Biscayne Tower, Suite 1970 Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-001074

Orders for Case No: 78-001074