STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH GREEN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6074

) SCHOOL BOARD OF PINELLAS COUNTY )

)

)

Respondent. )

)

RECOMMENDED ORDER

On April 5, 1995, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark F. Kelly, Esquire

Kelly & McKee, P.A. Post Office Box 75638

Tampa, Florida 33675-0638

For Respondent: Keith B. Martin, Esquire

Assistant School Board Attorney Pinellas County Schools Administration Building

301 Fourth Street Southwest Largo, Florida 34649-2942

STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.

PRELIMINARY STATEMENT

On October 28, 1994, the School Board referred to the Division of Administrative Hearings (DOAH) an Amended Petition for Administrative Hearing seeking recision of the Petitioner's resignation from her position as a high school teacher and reinstatement to her former position on the ground that her resignation was given under legal duress.

The case was referred with the caption reversed, and most of the papers in the file have the caption reversed. The caption of this Recommended Order is correct.

On November 10, 1994, the Petitioner filed a Motion to Consolidate this case with the case of Jamerson v. Green, DOAH Case No. 94-1629, an action to take disciplinary action against Green's teacher certificate. The School Board opposed the Motion to Consolidate. The Motion to Consolidate was heard by telephone on November 28, 1994. On November 29, 1994, an Order Denying Consolidation and Continuing Final Hearing to April 4, 1995, was entered in DOAH Case No. 94-1629, and a Notice of Hearing was issued in this case scheduling final hearing for April 5, 1995.

At final hearing in this case, the Petitioner testified in her own behalf and called one other witness. The School Board called three witnesses. The Petitioner had Petitioner's Exhibits 1 through 9 admitted in evidence. The School Board had Respondent's Exhibits A, B and D through G admitted in evidence. Ruling was reserved on the School Board's objection to admissibility of Petitioner's Exhibit 9, an Unemployment Compensation Appeals Bureau Notice of Decision of Appeals Referee, and the ruling may be found in the Conclusions of Law in this Recommended Order.

Neither party ordered the preparation of a transcript of the final hearing. The School Board asked for, and the parties were given, until April 21, 1995, in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-6074.

FINDINGS OF FACT

1. During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School.

   
   

2. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993.

   
   

3. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted.

   
   

4. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate.

   
   

5. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools.

   
   

6. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was

   not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993.

   
   

7. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting.

   
   

8. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed.

   
   

9. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller."

   
   

10. Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired.

    
    

11. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting.

    
    

12. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it.

    
    

13. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation.

    
    

14. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation.

    
    

15. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time.

    
    

16. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an

    attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.

    
    

    CONCLUSIONS OF LAW

    
    

17. A teacher's resignation may be withdrawn for any reason up to the time it is accepted. Hart v. School Bd. of Wakulla County, 340 So. 2d 121 (Fla. 1st DCA 1976). Once accepted, a teacher's resignation generally cannot be withdrawn, over objection, even if the effective date of the resignation has not yet occurred. See Civil Service Board, City of Ft. Lauderdale v. Carter, 363 So. 2d 858 (Fla. 4th DCA 1978).

    
    

18. Retirement or resignation is presumed to be voluntary. See McLauglin

    v. Dept. of Nat. Resources, 526 So. 2d 934 (Fla. 1st DCA 1988). The burden is on the Petitioner to prove, by objective evidence, that her resignation was not voluntary. Id. at 936.

    
    

19. Legal duress does not exist if defense of a threatened action is a reasonable alternative. Id. at 937. Where the option to retire or resign is exercised rather than defend the threatened action, the retirement or resignation is presumed to be voluntary. Id. at 938. Of course, the employee must be aware of the alternative to defend against the threatened action.

    
    

20. In City of Miami v. Kory, 394 So. 2d 494, 497 (Fla. 3d DCA 1981), it was held:

    
    

    As this formulation of the rule [in Herald v. Hardin, 95 Fla. 889, 116 So. 863 (1928)]

    and all the equivalent ones indicate, there are in essence two factors which must coexist in order to establish duress--one which deals with the party allegedly under duress; the other, with the party allegedly imposing it. It must be shown (a) that the act sought to be set aside was effected involuntarily and

    thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side. (Footnote omitted.)

    
    

21. The law of legal duress was slightly recast in McLaughlin v. Dept. of Nat. Resources, supra, to address the facts in that case, which included arguably improper conduct (if not bad faith) by the employer and the employee's lack of actual knowledge of his alteratives for contesting the action sought to be set aside (his retirement). It was held that legal duress requires proof:

    (1) that the employee involuntarily accepted the employer's terms; (2) that circumstances permitted no other alternative; and (3) that the circumstances were the result of coercive acts of the employer. Id. at 936.

    
    

22. Under either formulation, the Petitioner did not prove legal duress in this case. It was not proven that the School Board acted improperly or for

    purposes of coercing the Petitioner. The School Board simply acted in accordance with its normal procedures in similar circumstances and made the Petitioner aware of those procedures. Having been made aware of her options, the Petitioner chose one.

    
    

23. Even assuming that the Petitioner was unable to meet with Stephen Crosby on March 1, 1993, on receipt of his March 1, 1993, letter, she could have chosen not to resign. Even if she did not feel capable of defending herself at that time, she could have requested that the dismissal proceedings be delayed until she was able to proceed. If Crosby and the School Board did not agree to delay the proceedings as long as the Petitioner thought was necessary, she could have inquired into obtaining the assistance of counsel in securing a further delay or in defending herself in the dismissal proceeding, if necessary. She failed to exercise any of those options.

    
    

24. The School Board did nothing to coerce the Petitioner to choose resignation instead of defending the dismissal action. The Petitioner made her choice in part to avoid the stress of contesting a dismissal proceeding, in part to shield Michael Miller from untoward repercussions, and in part to avoid the expense of paying attorney fees to contest the dismissal proceeding. As to the latter, expense was an issue because the Petitioner failed to inquire of the Pinellas Classroom Teachers Association (PCTA) as to whether it would pay her attorney fees.

    
    

25. The Petitioner clearly knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claims that she did not know she was entitled to free legal counsel because she was on medical leave of absence as of January 27, 1993, and was not paying dues. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.

    
    

26. Even if paid counsel were not available to the Petitioner, she obviously also could have hired an attorney at her own expense before her resignation was accepted, as she ultimately did on or about June 8, 1993.

    
    

27. Finally, the Petitioner's position that it was unreasonable for her to have tried to defend herself, instead of resigning, is based on her emotional, mental and physical condition. But the Petitioner presented no competent medical opinion as to her emotional, mental and physical condition at the time she had to decide whether to resign or contest the dismissal proceedings. It is concluded that the evidence presented was insufficient to prove that it was unreasonable for her to have tried to defend herself before the acceptance of her resignation.

    
    

28. The Petitioner did not prove that she was "suffering from a handicap" (as the Petitioner put it in her Proposed Recommended Order). Even if she had proven entitlement to an accommodation, such a claim must be prosecuted under an appropriate statute creating a remedy for failure to accommodate a person "suffering from a handicap." E.g., Section 760.10, Fla. Stat. (1993).

    
    

29. The School Board objected to the admission in evidence of Petitioner's Exhibit 9, an Unemployment Compensation Appeals Bureau Notice of Decision of Appeals Referee, entered on September 3, 1993. The Petitioner contended that

    the exhibit should be admitted in evidence as conclusive proof of her mentally incapacity to defend herself before the acceptance of her resignation.

    
    

30. In order for collateral estoppel to apply in this case, the parties must have fairly litigated the issues raised in the prior subsequent proceeding. See Chesebrough v. State, 255 So.2d 675, 676-677 (Fla. 1971) ("a plea of nolo contendere does not estop the defendant to plead and prove innocence in a civil suit" since a plea of nolo contendere concedes the allegations of a criminal information or indictment for purposes of that prosecution only). Apparently applying this principle, it has been held that the doctrine of estoppel by judgment does not apply where two separate and distinct governmental units independently consider similar factual allegations but for different purposes. Newberry v. Dept. of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Walley

    v. Fla. Game & Fresh Water Fish Comm'n, 501 So. 2d 671 (Fla. 1st DCA 1987); Todd v. Carroll, 347 So. 2d 618, 619 (Fla. 4th DCA 1977).

    
    

31. In this case, two separate and distinct governmental units independently considered similar factual allegations but for different purposes. The Unemployment Compensation Appeals Referee was deciding the question whether there was good cause for Green's resignation so as to entitle her to unemployment compensation. Factual determinations in the unemployment compensation proceeding do not collateral estop the School Board from defending against the Petitioner's assertion in this case that she resigned under legal duress. In the unemployment compensation case, the fact issues were not fully and fairly litigated in the context of a legal duress claim.

    
    

32. Although it has been concluded that collateral estoppel does not apply, it nonetheless also is concluded that, while clearly hearsay that would not be admissible over objection in a civil action, Petitioner's Exhibit 9 is admissible under Section 120.58(1)(a), Fla. Stat. (Supp. 1994), for the purpose of supplementing or explaining other evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing.

RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 16th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary.

2. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him.

3. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated.

4. Accepted and incorporated.

5. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated.

6. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated.

7. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary.

8. Accepted but subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted but subordinate and unnecessary.

3. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary.

8.-20. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

2. Accepted and incorporated.

23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.)

COPIES FURNISHED:

Mark F. Kelly, Esquire Kelly & McKee, P.A.

P. O. Box 75638

Tampa, Florida 33675-0638

Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building

301 Fourth Street SW Largo, Florida 34649-2942

Dr. J. Howard Hinesley Pinellas County School Board

301 4th Street SW

Largo, Florida 34640-3536

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the School Board of Pinellas County written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the School Board of Pinellas County concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-006074

Orders for Case No: 94-006074