STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4805
)
RICHARD COHAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on April 29 and May 14, 1987, in Miami, Florida. The following appearances were entered:
For Petitioner: Frank Harder, Esquire
8360 West Flagler Street, Suite 205
Miami, Florida 33144
For Respondent: William du Fresne, Esquire
2929 Southwest Third Avenue, Suite One Miami, Florida 33129
PROCEDURAL BACKGROUND
By Formal Notice of Charges dated January 27, 1987, the Petitioner, School Board of Dade County, alleges that Respondent is guilty of conduct which constitutes incompetency and gross insubordination or willful neglect of duties as defined by Rules 6B-4.09(1) and (4), Florida Administrative Code, respectively. Petitioner seeks Respondent's dismissal as a continuing contract employee. The Respondent requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.
At the final hearing, Petitioner presented the testimony of the following witnesses: Frederick Sturgeon, Principal of Miami Edison Senior High School; Judy S. Weiner, former Assistant Principal at Miami Edison Senior High School; Dr. Felicia Gil, formerly a coordinator in the Office of Professional Standards, Dade County School Board; and Desmond Patrick Gray, Assistant Superintendent in the Office of Professional Standards, Dade County School Board. Petitioner's Exhibits 1-22 and 24-26 were duly offered and admitted into evidence. The Respondent testified in his own behalf and presented the testimony of: Dr.
Albert C. Jaslow and Dr. Roger Rousseau, both accepted as experts in the field of psychiatry. Respondent's Exhibits 2 through 5 were duly offered and admitted into evidence. Ruling was reserved as to Respondent's Exhibit 1, but after due consideration, the exhibit is admitted in evidence it its entirety. The parties have submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:
The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner.
During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein.
1984-85 School Year
Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation.
1985-86 School Year
The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences.
During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes.
At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to:
Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences;
Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and
Have on file with the school three days of "emergency lesson plans" dealing with general academic skills.
On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985
conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference.
As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference.
On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness.
At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986.
On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested.
On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility.
On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school.
Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book.
On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her.
The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives.
On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school.
At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension.
1986-87 School Year
The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced.
Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher.
On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items.
During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message.
On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans.
On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility.
On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress.
The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority.
On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School.
Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression.
Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau.
Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended.
Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite.
Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression.
Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty.
The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression.
Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
Any member of the instructional staff in any district school system may be dismissed at any time during the school year provided that the charges against him are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of a crime involving moral turpitude. See Section 231.36(4)(c), Florida Statutes. In the instant case, the charges placed against Respondent by the School Board of Dade County include incompetency, gross insubordination and willful neglect of duties.
Incompetency is defined as an "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Rule
6B-4.09(1), Florida Administrative Code. Inefficiency is defined as "a repeated failure to perform duties prescribed by law" and/or a "repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of a minimum educational experience." Rule 6B- 4.09(1)(a), Florida Administrative Code. Incapacity is defined as, among other things, "a lack of emotional stability" and "a lack of adequate physical ability." Rule 6B-4.09(1)(b).
Gross insubordination or willful neglect of duty is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Rule 6B-4.09(4), Florida Administrative Code.
The Petitioner established the factual allegations of the Notice of Charges as discussed in the Findings of Fact. Based on the factual findings, the Respondent is guilty of incompetency due to incapacity and inefficiency as defined in Rule 6B-4.09, Florida Administrative Code. The Respondent's lack of emotional stability resulted in a pattern of repeated absenteeism and an inability to comply with reasonable and necessary directives such as the utilization of proper student assessment techniques and the proper reporting of anticipated absences. Due to the Respondent's excessive number of absences and constant failure to provide lesson plans for use by substitute teachers, the students assigned to Respondent's classes were deprived of a minimum educational experience. Respondent's emotional instability had a negative impact upon the quality of education received by his students. Respondent's excessive absences resulted in an inconsistent, unstructured instructional program being offered to his students by various substitute teachers with no lesson plans. In addition, the Respondent's excessive absenteeism from school resulted in inefficiency due to a repeated failure to communicate with and relate to the children in the classroom. A teacher cannot communicate with or relate to students when the teacher is constantly away from the classroom.
The evidence was not sufficient to establish that the Respondent was guilty of gross insubordination or willful neglect of duties as defined in Rule 6B-4.09(4) Florida Administrative Code. Gross insubordination or willful neglect of duties requires a constant or continuing intentional refusal to obey lawful orders or fulfill reasonable duties. Because of the Respondent's depression, his failure to follow the directives given were not intentional within the meaning of Section 231.36(4)(c), Florida Statutes, even though he knew of the duties and that he was required to perform them. The Respondent was aware of his responsibilities but because of the devastating feelings of hopelessness, helplessness and despair brought on by his depression, Respondent was unable to perform his required duties. The Respondent is not guilty of gross insubordination or willful neglect of duty.
Respondent points out that Section 231.40, Florida Statutes, provides that a teacher confronted with a sickness or extended personal illness requiring his absence shall be granted leave of absence for sickness. Therefore, Respondent argues that a teacher's incompetent teaching performance caused by absenteeism due to an illness is not grounds for dismissal.
In MacPherson v. School Board of Monroe County, 505 So.2d 682, (Fla. 3rd DCA 1987), the Court was faced with a strikingly similar factual situation as presented herein. There, the school board had taken action to downgrade MacPherson's status from a continuing contract teacher to an annual contract
employee pursuant to Section 231.36(4)(b), Florida Statutes, because of excessive absenteeism caused by a foot injury which failed to heal properly. Although the principal of the school at which she taught suggested to MacPherson that she take a medical retirement, MacPherson declined indicating that she wanted to continue to teach. During the following 3 academic years, MacPherson's absenteeism continued to be excessive and had a detrimental effect on her students. The Court stated that:
"Owing a responsibility to both students and teachers, the Board had to weigh its responsibilities and determine whether a continually absent teacher is able to provide adequate instruction for school students."
The Court affirmed the school board's decision adjusting MacPherson's status to that of an annual contract teacher.
In the instant case, there was no evidence that the Respondent had taken any action to seek a medical leave of absence. The responsibility of requesting an authorized medical leave of absence is certainly upon the employee and there appears to be no procedure for the administration of a district school system to place a teacher on an "involuntary" medical leave of absence.
Based on the factual findings herein, the School Board of Dade County has the authority to suspend or dismiss the Respondent from his position as a continuing contract teacher. Dismissal would appear to be an inappropriately harsh penalty in view of the following factors in the instant case:
Respondent is, and was at all times during the conduct alleged herein, suffering from a bona fide illness diagnosed by two qualified medical doctors;
Respondent was previously punished with a 10 day suspension for much of the same conduct concerned herein, returned to work from the 10 day suspension after the new school year had already begun and was confronted with a barrage of performance evaluations within a very short period of time; and,
Respondent began medical treatment in May of 1986 and has not been given an adequate opportunity to demonstrate his response to treatment and his ability to continue teaching satisfactorily in the classroom as he had done from the 1970-71 school year until his illness manifested itself during the 1984-85 school year. (Most of Respondent's absences at the beginning of the 1986-87 school year were due to a physical illness unrelated to his depression.)
Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that:
Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following:
Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work;
Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice;
Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years.
The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action.
DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Addressed in Procedural Background section.
Addressed in Procedural Background section.
(No finding of fact 3)
Addressed in Procedural Background section.
Adopted in Finding of Fact 2.
Adopted in substance in Finding of Fact 3.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 5.
Adopted in substance in Finding of Fact 6.
Adopted in substance in Finding of Fact 7.
Adopted in substance in Finding of Fact 8.
Adopted in substance in Findings of Fact 9, 10 and 11.
Adopted in substance in Finding of Fact 12.
Adopted in substance in Finding of Fact 13.
Adopted in substance in Finding of Fact 14.
Adopted in substance in Finding of Fact 15.
Rejected as unnecessary and/or subordinate.
Adopted in substance in Finding of Fact 16.
Adopted in substance in Finding of Fact 16.
Adopted in substance in Finding of Fact 20.
Adopted in substance in Finding of Fact 21.
Adopted in substance in Finding of Fact 21.
Adopted in substance in Finding of Fact 23.
Adopted in substance in Finding of Fact 23.
Addressed in Conclusions of Law section.
Adopted in substance in Finding of Fact 24.
Addressed in Conclusions of Law section.
Addressed in Conclusions of Law section.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in substance in Finding of Fact 1.
Adopted in substance in Finding of Fact 1.
Adopted in substance in Finding of Fact 3.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 6.
Adopted in substance in Findings of Fact 8-21.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Findings of Fact 9 and 10.
Adopted in substance in Finding of Fact 10.
Adopted in substance in Finding of Fact 29.
Rejected as subordinate and/or unnecessary.
Addressed in Procedural Background section.
Adopted in substance in Finding of Fact 31.
Addressed in Conclusions of Law section.
COPIES FURNISHED:
Frank R. Harder, Esquire 8360 West Flagler Street Suite 205
Miami, Florida 33144
William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310
Coconut Grove, Florida 331133
Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136
Dr. Patrick Gray
Division of Professional Standards Dade County Public Schools
1550 North Miami Avenue - Suite 100 Miami, Florida 33136
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399
Sydney McKenzie, Esquire General Counsel Department of Education Knott Building
Tallahassee, Florida 32399
Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
| Issue Date | Proceedings |
|---|---|
| Jul. 28, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 19, 1987 | Agency Final Order | |
| Jul. 28, 1987 | Recommended Order | Dismissal from teaching position deemed too harsh because petitioner is suffering from an illness and hasn't been given a chance to show his response to treatment. |
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs GREGORY JAMISON, 86-004805 (1986)
SARASOTA COUNTY SCHOOL BOARD vs GEORGE H. LEWIS, 86-004805 (1986)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs CHARLES T. INNES, 86-004805 (1986)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs CORNELL LAMONT STEWARD, 86-004805 (1986)
MIAMI-DADE COUNTY SCHOOL BOARD vs ALFREDO REGUEIRA, 86-004805 (1986)
