STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, ) FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 93-2293

)

MARY JEAN BROOKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in the case on January 20, 1994, in Largo, Florida.

APPEARANCES

For Petitioner: Robert G. Walker, Jr., Esquire

1432 Court Street

Clearwater, Florida 34616-6147

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640-3625 STATEMENT OF THE ISSUES

Whether or not Petitioner properly terminated Respondent's employment as an annual contract teacher because of alleged misconduct as is particularly set forth in the superintendent's letter of April 14, 1993.

PRELIMINARY STATEMENT

By letter dated April 14, 1993, Petitioner, the School Board of Pinellas County, advised Respondent, Mary Jean Brooker, that at the regularly scheduled school board meeting for April 28, 1993, Petitioner's superintendent, J. Howard Hinesley, would recommend her dismissal effective April 29, 1993. Petitioner's recommendation was based on allegations that: (1) Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, claiming to be totally disabled when, in fact, you were able to work and actually did work at a daycare center; and (2) Respondent was physically capable of resuming teaching duties with the district as early as September 1992. Petitioner concluded that such misconduct amounted to just cause for Respondent's dismissal pursuant to Section 231.36(6)(c), Florida Statutes. Respondent denied those allegations and requested a formal administrative hearing. On April 29, 1993, the matter was transferred to the Division for the assignment of a hearing officer to conduct a formal hearing. On January 20, 1994, the hearing was held in Largo, Florida, as scheduled.

At the final hearing, Petitioner presented the testimony of Superintendent

1. Howard Hinesley, Terry Dillon, M.D., Principal Susan Daniels, Steven Crosby, of Petitioner's personnel office, private detectives Clifford Froggatt and Angela Elliott, claims adjustor Susan Barkley and director of risk management, Louis Glass. Respondent testified on her own behalf and offered the testimony of her husband, Harlan Brooker. Petitioner introduced four exhibits and Respondent introduced one exhibit, all of which were received in evidence.

   
   

   The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Mary Jean Brooker, is a teaching veteran of approximately

      18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract.

      
      

   2. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request.

      
      

   3. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds.

      
      

   4. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990.

      
      

   5. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere.

      
      

   6. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records.

      
      

   7. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder

      blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent

      August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis.

      
      

   8. Respondent was not issued any work restrictions by Dr. Dillon.

      
      

   9. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period.

      
      

   10. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized.

       
       

   11. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident.

       
       

   12. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident.

       
       

   13. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993.

       
       

   14. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule.

       
       

   15. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores.

   16. Respondent and her husband moved to a new residence on September 18, 1992.

       
       

   17. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home.

       
       

   18. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992.

       
       

   19. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day.

       
       

   20. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk.

       
       

   21. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time.

       
       

   22. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim.

       
       

   23. Respondent reported for work when she was released by her treating physician.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   25. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

       
       

   26. The Pinellas County School Board, as Petitioner, has the burden of proof in this employee dismissal hearing and the standard is proof by a preponderance of the evidence. See Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA, 1990).

       
       

   27. The superintendent of the Pinellas County School Board has the authority to suspend instructional staff and recommend school board employees for dismissal pursuant to Subsection 230.33(7)(e), Florida Statutes.

   28. Respondent has the authority to dismiss school board employees pursuant to Subsection 230.23(5)(f), Florida Statutes.

       
       

   29. Respondent has the authority to suspend or dismiss instructional staff with annual contracts, at any time, during the term of the contract if charges against the individual are based on just cause. Florida Statutes, Sections 231.36(1)(a), and (6)(a).

       
       

   30. The Florida Department of Education and the State Board of Education establishes principles of professional conduct for the educational profession in Florida. One established principle of law of professional conduct is that the educator shall not submit fraudulent information on any document in connection with professional activities and that a violation of any of such principles shall subject the individual to revocation, suspension or other penalties as provided by law. Florida State Board of Education Rules 6B-1.006(2) and 6B- 1.006(5)(h).

       
       

   31. Respondent failed to establish that Petitioner violated any statutory or rule provision(s) of the State Board of Education or that the Petitioner had just cause to suspend or dismiss Respondent as an instructional employee with an annual contract within the purview of subsection 231.36, Florida Statutes.

Here, the evidence revealed that Respondent submitted her claim for worker's compensation benefits and consulted treating physicians of her own choosing and underwent an IME examination by a specialist referred by Petitioner's consultants. All of the consultants confirmed that Respondent sustained injuries in the auto accidents and following her rehabilitation, Petitioner reported to work when she was released by her treating physician. The fact that Respondent assisted her husband in the operation of a daycare center, which duties consisted of light work and that she also assisted in the moving of household goods during September, 1992, does not support a claim that she submitted fraudulent statements to obtain worker's compensation benefits.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension

and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal.

DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293

Rulings on Petitioner's proposed findings of fact:

Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order.

Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant.

Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1.

Rulings on Respondent's proposed findings of fact:

Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order.

Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument.

Paragraph 18, rejected, not probative.

COPIES FURNISHED:

Robert G. Walker, Jr., Esquire 1432 Court Street

Clearwater, Florida 34616-6147

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625

Douglas L. "Tim" Jamerson Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools

301 Fourth Street, Southwest Largo, Florida 34640-3536

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs. DOAH CASE NO. 93-2293

MARY JEAN BROOKER,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated on or about April 14, 1993, the Superintendent of Schools for Pinellas County, Florida, recommended to the School Board of Pinellas County that MARY JEAN BROOKER be dismissed from her employment for the reasons stated in the letter; and

WHEREAS, said MARY JEAN BROOKER timely requested an administrative hearing;

and

WHEREAS, an administrative hearing was conducted on January 20, 1994,

before Hearing Officer James E. Bradwell, Division of Administrative Hearings; and

WHEREAS, the entire record of the case including, the Hearing Officer's Recommended Order, the Petitioner's Exceptions to the Hearing Officer's Recommended Order, the Respondent's Response to Petitioner's Exceptions, together with the Transcript of Proceedings with Exhibits, Petitioner's Proposed Findings of Fact, Conclusions of Law and Supporting Memorandum, and the Respondent's Proposed Findings of Fact and Conclusions of Law have been carefully reviewed, it is

ORDERED AND ADJUDGED that the Hearing Officer's Recommended Order is hereby ACCEPTED AND ADOPTED and incorporated herein in its entirety with the exception of MARY JEAN BROOKER's reinstatement to employment as a teacher and the Hearing Officer's Conclusion that he had jurisdiction to address the issue of Respondent's employment beyond the 1992-93 school year; and it is further

ORDERED AND ADJUDGED that the acceptance of the Hearing Officer's Findings of Fact and Conclusions of Law is based on the requirements of Law, and not based on an agreement with said Findings or Conclusions; and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order is accepted and the Hearing Officer's recommendation that a Final Order be entered in this cause reinstating MARY JEAN BROOKER to her

teaching position is rejected in that MARY JEAN BROOKER was employed by an annual contract which terminated at the end of the 1992-93 school year and was not offered another contract for the 1993-94 school year, and it is further

ORDERED AND ADJUDGED that MARY JEAN BROOKER's suspension without pay is rescinded and MARY JEAN BROOKER shall receive full back pay effective from April 28, 1993 through June 11, 1993 (the end of the 1992-93 school year) in the amount of $4,571.52, and it is further

ORDERED AND ADJUDGED that MARY JEAN BROOKER shall be reimbursed for any and all of her benefits attending her employment, for the period of her suspension without pay effective from April 28, 1993 through June 11, 1993 (the end of the 1992-93 school year), and it is further

ORDERED AND ADJUDGED that MARY JEAN BROOKER is hereby notified of her right to appeal this Order to the Second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the Clerk of the Court or on Keith B. Martin, Assistant School Board Attorney, within thirty (30) days of this date.

Dated this 23rd day of August, 1994, at Largo, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY,

By:

Attest: Ex-officio Secretary

Docket for Case No: 93-002293

Orders for Case No: 93-002293