STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL DISTRICT OF )
PALM BEACH COUNTY, )
)
Petitioner, )
)
vs. ) Case No. 97-2582
)
DEBORA WOESSNER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on November 17 and 18, 1997, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Virginia Tanner-Otts, Esquire
Palm Beach County School Board Office of the General Counsel
3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813
For Respondent: Thomas L. Johnson, Esquire
Law Offices of John J. Chamblee, Jr.
202 West Cardy Street Tampa, Florida 33606
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Administrative Complaint.
If so, whether such conduct provides the School District
of Palm Beach County with "just cause" to take disciplinary
action against Respondent pursuant to Section 231.36, Florida Statutes.
If so, what specific disciplinary action should be taken.
PRELIMINARY STATEMENT
After receiving written notice that the Superintendent of Schools of Palm Beach County was recommending her "suspension without pay and dismissal from employment with the School District as an instructor" for "breaking into a trailer and 'trashing it'" and "stealing a credit card and using it to make purchases in excess of $300.00," Respondent, through counsel, requested (in writing) that "a [Section 120.57(1)] hearing be conducted with respect to all issues raised by the charges and her defense to the charges." On May 9, 1997, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division administrative law judge to conduct the hearing Respondent had requested. Thereafter, the School District of Palm Beach County (School District or School Board) filed with the Division and served on Respondent an Administrative Complaint alleging that: "Respondent admits to breaking into a trailer and 'trashing it"; "Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00"; and, "[a]s a result of the foregoing, the[re is] JUST CAUSE to dismiss the [R]espondent due to her MISCONDUCT, criminal or otherwise, which is inconsistent with the standards of public conscience and good morals, to wit:
destruction of property, breaking and entering, and theft." Respondent subsequently filed with the Division and served on the School District an Answer to the Administrative Complaint in which she admitted having engaged in the conduct alleged in the Administrative Complaint, but denied that it provided the School District with just cause to terminate her employment or suspend her without pay. Respondent further contended in her Answer that:
she suffered a handicap or disability during the period of time in which she engaged in the conduct alleged in [the Administrative Complaint], and the existence of Respondent's handicap or disability was known to the Petitioner who . . . discriminated against the Respondent on that basis, and refused to provide reasonable accommodation. The Petitioner's conduct violates 42 U.S.C. Section 12101, et seq., Section 760.10, et seq., and Article I, Section II of the Florida Constitution, all of which prohibit discrimination on the basis of disability and/or handicap.
As noted above, the final hearing in this case was held on November 17 and 18, 1997. At the final hearing, nine witnesses testified: Joseph Scrivo; Robert Walton; W. Paul Lachance; Dana Scrivo; Linda Hardy; Dianne Howard; Dr. Joanne Kaiser; Dr.
Leonard Ferrante; and Respondent. In addition Petitioner's Exhibits 1 through 8, 10 through 15, 17, 19, 21 through 36 and 39
and Respondent's Exhibits 8, 14, 17, 18 and 19 (the transcript of the deposition of Dr. Mark Ellinger, Respondent's clinical psychologist) were received into evidence.
At the close of the evidentiary portion of the hearing on November 18, 1997, the parties were advised of their right to
file proposed recommended orders and a deadline was established (45 days from the date of the undersigned's receipt of the transcript of the final hearing) for the filing of proposed recommended orders. The undersigned received the transcript of the hearing on January 8, 1998. Respondent subsequently sought two extensions of the deadline for filing proposed recommended orders. Both requests were granted and the deadline for the filing of proposed recommended orders was first extended to March 20, 1998, and then to March 30, 1998.
On March 27, 1998, and March 30, 1998, respectively, the School District and Respondent filed their proposed recommended orders. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
The School Board
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Palm Beach County, Florida. Respondent's Teacher Certification
Respondent is a teacher by profession. She holds a certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that she is eligible to teach in the State of Florida in the areas of early childhood education, elementary education, ESOL, and exceptional education
(specific learning disabilities, emotionally handicapped, and mentally handicapped). The certificate's "validity period" is July 1, 1993, through June 30, 1998.
Respondent's Employment History
Respondent has been employed by the School District since August of 1987.
She holds a professional services contract.
She is currently under suspension (without pay) pending the outcome of this disciplinary proceeding.
For the duration of her employment with the School District, Respondent has held an instructional position at Forest Hill Elementary School (Forest Hill), the principal of which, since the 1988-89 school year, has been Linda Hardy.
During her early years at Forest Hill, Respondent taught emotionally handicapped students. Having to deal with these special-need students, however, became too stressful for her. She therefore was moved to the regular education program at the school and served as a regular fifth grade classroom teacher
until her removal from the classroom in November of 1996 when the school administration learned of the criminal conduct in which she had engaged the month before (that is described in the Administrative Complaint).
Respondent's Classroom Performance
Respondent's classroom performance at Forest Hill was erratic.
Principal Hardy had various informal conferences with Respondent during which she identified for Respondent those areas of Respondent's performance in which improvement was needed. Respondent's performance in these areas would improve and reach a
satisfactory level following each conference, but only for a limited period of time, after which it would decline again, thereby necessitating the convening of another conference. As Principal Hardy stated in her testimony at the final hearing, Respondent's performance was "like a roller coaster."
Respondent nonetheless received an overall satisfactory rating on every annual written evaluation she was given while at Forest Hill. There were, however, on each of these evaluations, "areas of concern" noted.1 These "areas of concern" primarily involved Respondent's interaction with students, parents and colleagues.
Respondent's Prior Disciplinary Record
Prior to her removal from the classroom in November 1996, the only discipline she had received was a written reprimand for failing to timely submit lesson plans and other paperwork.
Respondent's Rejection of the Suggestion to Participate in the Employee Assistance Program
Particularly during the latter part of the period that she served as a regular classroom teacher, Respondent had difficulty coping with the stress she was experiencing in both her professional and personal lives.
Principal Hardy, in whom Respondent had confided about these problems, suggested on more than one occasion that Respondent utilize the services of the School District's Employee Assistance Program.
Respondent declined to follow Principal Hardy's
suggestions. She advised Principal Hardy that it was unnecessary for her to seek assistance from the Employee Assistance Program
since she was "seeing her own doctor" to help her with these problems.
The Granting of Respondent's Request for Extended Leave
By letter dated November 8, 1995, which read, in pertinent part, as follows, Respondent requested an extended leave of absence from her position with the School District:
Effective 11-8-95, I am requesting a temporary leave of absence from my fifth grade teaching position at Forest Hill Elementary School (0621).
At the present time it would be in the best interest of my students if I take a temporary leave of absence.
During this temporary leave of absence I will be under the care of Doctors Jeanne Yetz [and] Mark Ellinger . . . .
Respondent was granted a leave of absence from November 8, 1995, until January of 1996.
Respondent's Mental Health
Dr. Mark Ellinger is a clinical psychologist who has been treating Respondent (using psychotherapy) since August of 1994, for problems relating to mood, interpersonal relations, and substance abuse and dependence.
Dr. Ellinger's treatment has been supplemented by medication (to reduce anxiety and for depression) prescribed by a psychiatrist, Dr. Jeanne Yetz.
Over the period of time that she has been treated by
Drs. Ellinger and Yetz, Respondent's condition has worsened.
Dr. Ellinger's original diagnosis, at the time treatment began, was depressive disorder NOS (Not Otherwise Specified), a very mild disturbance. His secondary diagnosis was post-traumatic stress disorder. (Respondent related to Dr. Ellinger that, during her childhood, she had been sexually molested and verbally and physically abused.)
More recently, in October of 1997, Dr. Ellinger determined that Respondent was suffering from major depression recurrent, borderline personality disorder, and cannabis dependence (in partial remission).
Major depression recurrent is the most severe form of depression.
Borderline personality disorder is also a very serious mental illness. It can extend over a lifetime and is difficult to treat effectively. Persons with borderline personality disorder struggle to control their anger and rage and to act appropriately, particularly in their dealings with others. As a result, they have difficulty maintaining stable interpersonal relationships.
Cannabis dependence is a maladaptive pattern of marijuana use leading to clinically significant impairment or distress. It is more serious than cannabis abuse, which, unlike cannabis dependence, involves merely periodic, rather than ongoing, marijuana use.
On November 5, 1997, Dr. Ellinger filled out a
Functional Capacities Evaluation form (FCE Form) describing Respondent's abilities in the following areas:
Ability to relate to other people;
Restriction of daily activities, e.g. ability to attend meetings, socialize with others, attend to personal needs, etc.;
Deterioration of personal habits;
Constriction of interests;
Understand, carry out, and remember instructions;
Respond appropriately to supervision;
Perform work requiring regular contact with others;
Perform work where contact with others will be minimal;
Perform tasks involving minimal intellectual effort;
Perform intellectually complex tasks requiring higher levels of reasoning, math and language skills;
Perform repetitive tasks;
Perform varied tasks;
Makes independent judgment;
Supervise or manage others;
Perform under stress when confronted with emergency, critical, unusual or dangerous situations; or situations in which working speed and sustained attention are make or break aspects of the job; and
Ability to work relative to the attached job description.
Dr. Ellinger indicated on the FCE Form that Respondent had a "mild" impairment ("[s]uspected impairment of slight importance which does not affect functionality ability") in areas 3, 11, and 12; a "moderate" impairment ("[i]mpairment affects but does not preclude ability to function") in areas 4, 5, 8, 9, and 10; and a "moderately severe" impairment ("[i]mpairment significantly affects ability to function") in areas 1, 2, 6, 7, 13, 15, and
16.2
Dr. Ellinger sent the completed FCE Form to the "claims advisory agent" representing the insurance company with whom Respondent had filed, in May of 1997, after the initiation of this disciplinary proceeding, a claim seeking disability insurance benefits.
Dr. Ellinger also completed and sent to the "claims advisory agent" a Mental Status Supplemental Questionnaire (Questionnaire), in which he stated, among other things, the following:
She [Respondent] continues to struggle with the above listed problems [problems relating to mood, substance abuse and interpersonal relations] and those have gone on for years. Mood is intermittently depressed, anxious and irritable. Thinking processes are intact with some moderate deficit due to mood disorder and stress of medical problems.
Intelligence is normal. Perception shows some deficits and judgment has been poor in recent past evidenced by legal problems.
Behavior has been impulsive and aggressive.
He also indicated in the completed Questionnaire that one of Respondent's "treatment goals" was to "develop [a] new career due to [her] disability."
It is important for Respondent to "develop [a] new career" inasmuch as her deep-rooted and severe mental health problems have significantly impaired her ability to function effectively as a classroom teacher.3
Respondent's Relationship with the Scrivos
In 1996, Respondent moved into an apartment building on Seapine Way (Seapine Apartments) in Greenacres, Florida.
Living in the apartment directly beneath Respondent's was the Scrivo family: Joseph, Sr. (Joe); his wife Dana; and their children, Joseph, Jr., and Gianna.
Joseph, Jr., and Gianna are now three and eight years of age, respectively.
Gianna is now, and has been at all times material to the instant case, a student at Forest Hill.
After moving into the Seapine Apartments, Respondent began to socialize with the Scrivo family and became friends with Dana.
Respondent, however, did not get along well with Joe.
Joe said things to Respondent that Respondent considered to be insulting.
She also suspected that Joe was the person who was leaving the pornographic material she started to find at her front door in the morning. (In fact, Joe was not the culprit.) The Scrivos' Separation
In the summer of 1996, Joe and Dana had marital problems.
As these problems escalated, Joe began to secretly tape record Dana's telephone conversations at home.
With Respondent's assistance, Dana discovered that Joe was making these tape recordings.
On August 7, 1996, Joe and Dana separated.
Dana and the children remained in the Seapine Way apartment.
Joe moved into a trailer located at 6074 South 16th Way in West Palm Beach.
Dana obtained a restraining order against Joe.
The restraining order prohibited Joe from having contact with Dana, except to the extent that such contact was necessary for Joe and Dana to discuss and to tend to the needs of their children.
Dana made Respondent aware of the fact that she had obtained a restraining order against Joe.
Joe's October 23, 1996, Visit to the Seapine Apartments
Gianna had trouble dealing with her parents' separation.
On the evening of October 23, 1996, Gianna was particularly upset.
Dana telephoned Joe and told him that she wanted to speak to him in person about Gianna.
Later that evening, Joe drove to the Seapine Apartments to meet with Dana.
Respondent saw Joe in his van outside the apartment building.
She telephoned the police and reported to them that Joe was on the grounds of the Seapine Apartments in violation of a restraining order that had been issued against him.
When the police arrived on the scene, Joe and Dana were
in Joe's van talking to one another.
The police questioned Joe and then spoke to Dana.
Dana told the police that she had requested the meeting with Joe to talk to him about the emotional problems their daughter was experiencing. She further informed the police that
the restraining order did not bar Joe from meeting with her to discuss such a matter.
The police left without taking any action. The Vandalizing of Respondent's Car
The following afternoon, Thursday, October 24, 1996, Joe left town to visit his aunt in Key West, Florida.
Sometime after Joe left town, during the evening of October 24, 1996, or the morning of October 25, 1996, before approximately 7:45 a.m., the front of the exterior of Respondent's automobile was damaged while the automobile was parked in the parking lot outside her apartment. It appeared to Respondent, who discovered the damage at approximately 7:45 a.m. on October 25, 1996, as she was about to get into her car and drive to work, that someone had thrown paint remover on the car.
Respondent reported the damage to the police and then drove to work.
After work she went to a body shop to obtain an assessment of the damage that had been done to her automobile. She then returned home.
The "Trashing" of Joe's Trailer and the Theft and Use of Joe's Credit Cards
From the time she returned home until the early morning hours of Sunday, October 27, 1996, Respondent remained awake and stewed about what had been done to her car. She felt as if she had been "violated." The more she thought about it, the more upset and angrier she became.
Although she was experiencing these negative feelings,
Respondent believed that there was no immediate need to seek the assistance of Dr. Ellinger, with whom she had an appointment scheduled for the following week. She thought that this situation "was something that [she] could actually work through" herself. As it turned out, she was wrong.
Respondent erroneously believed that it was Joe who had damaged her automobile and she decided to get even with him by doing damage to his possessions.
She knew that Joe was out of town, so, during the early morning hours of Sunday, October 27, 1996, she drove to Joe's trailer with the intention of vandalizing it and its contents.
Upon arriving at her destination, she broke into the trailer and, in accordance with her plan, proceeded to willfully and maliciously do extensive damage to the interior of the structure and the possessions of Joe's that were in the structure. Among other things, she flooded the trailer by stopping up the sinks, turning on the faucets, and letting the water run; spread and smeared food items that were in the refrigerator on the floor, walls, ceiling, furniture, and photographs, including photographs of the Scrivo children; slashed Joe's clothes and his bed with a knife; and damaged electronic equipment.
In addition, she stole from the trailer three of Joe's credit cards, which she subsequently used to purchase, by fraudulent means, in excess of $300.00 worth of merchandise.
Respondent's "trashing" of Joe's trailer and her theft
and fraudulent use of his credit cards was related to her mental illness, which made it difficult for her to control her emotions
and to exercise restraint (although she knew what she was doing and that her actions were wrong).
Respondent engaged in this conduct, notwithstanding that she was at the time, and had been for approximately the previous 26 months, under the care of, and receiving treatment from, Drs. Ellinger and Yetz. In fact, Dr. Ellinger had specifically counseled Respondent to make every effort to avoid being provoked by Joe.
There is no guarantee that Respondent will not engage in similar inappropriate conduct in the future. Indeed, given the nature of her mental illness, it is more likely than not that she will.
The Discovery of Respondent's Crimes
Respondent also took from the trailer, when she left after her rampage, three or four audio cassette tapes that Joe had used to secretly tape record Dana's telephone conversations before their separation.
Respondent left the tapes outside the front door of Dana's apartment along with a note which read as follows:
These are the tapes that Joe used to record your phone conversations.
From a friend.
When Dana found the tapes and read the note she figured that someone had broken into Joe's trailer. She suspected Respondent as having been the culprit because, to Dana's knowledge, other than Joe and her herself, only Respondent and a friend of Dana's who lived in New Jersey knew of the existence of
the tapes.
Dana asked two of her downstairs neighbors who were friendly with Joe to go check on Joe's trailer. They agreed to do so.
Some time later, one of them returned and informed Dana that Joe's trailer was flooded and that the police had been called to the scene.
The other neighbor telephoned Joe, who was still in Key West, and told him about the damage to his trailer.
Joe returned home immediately. Respondent's Post-Incident Conduct
Respondent did not want anyone to know what she had done. She therefore initially told no one, not even Dr. Ellinger, about her "trashing" of Joe's trailer and her stealing and subsequently using his credit cards.
While she remained quiet about her wrongdoing, she was not reluctant to complain to others about what she perceived to be Joe's harassment of her.
On or about October 29, 1996, Respondent applied for and obtained in Palm Beach County Circuit Court an ex parte restraining order against Joe.
The restraining order was later dismissed on
November 12, 1996, after a hearing on the matter, in which both Joe and Respondent participated.
On November 22, 1996, the police came to Forest Hill to speak with Respondent about the events of October 27, 1996.
After being read her Miranda rights, Respondent agreed to give a statement to the police.
At first, Respondent denied breaking into Joe's trailer.
Not long thereafter, however, she retracted her denial and admitted to the police what she had done.
Following the interview, the police advised Respondent that they would be seeking the issuance of a capias for her arrest.
The police told Principal Hardy of their intention to effect Respondent's arrest.
Principal Hardy thereupon directed Respondent not to return to the classroom and informed her that she was being reassigned (with pay) to her home until further notice.
Later that day, Respondent saw Dr. Ellinger and for the first time told him about her destructive behavior at Joe's trailer during the early morning hours of October 27, 1996. (She subsequently, on December 16, 1996, told Dr. Ellinger about the credit cards she had stolen and then used.)
The District Meeting and Meeting of the Professional Standards Committee
Principal Hardy brought the matter of the police investigation of Respondent to the attention of the School District's Department of Employee Relations.
The Department of Employee Relations determined that a pre-disciplinary meeting should be held with Respondent.
Such a pre-disciplinary meeting was ultimately held on March 18, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County
Teachers Association, Respondent and her attorney.
At the meeting, Respondent admitted to breaking into Joe's trailer and "trashing" it and to stealing Joe's credit cards and using them to make purchases in excess of $300.00. In attempting to explain why she had engaged in such conduct, Respondent claimed that Joe had taunted, stalked and harassed her prior to the incident. In addition, she advised that she was under the care of a psychologist, Dr. Ellinger, whom, she stated, the School District could contact if it so desired.
After hearing from Respondent, the School District representatives at the meeting determined that there was probable cause for the matter to be presented to the School District's Professional Standards Committee for its recommendation.
After having considered the matter, the Professional Standards Committee recommended to the School District's Superintendent of Schools that action be initiated to terminate Respondent's employment with the School District.
The Superintendent's Action
On April 14, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows:
Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an instructor.
You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement
between the School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon the following actions (criminal or otherwise): First, you admitted to breaking into a trailer and "trashing it." Second, you admitted to stealing a credit card and using it to make purchases in excess of $300.00.
Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code.
Please be advised that I will recommend at the May 7, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective May 8, 1997, and that the termination of employment will become effective upon the expiration of fifteen days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes.
The May 7, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at
5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (561) 434- 8139, of your intention to make a presentation at that meeting.
Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing
on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter.
On April 22, 1997, the Superintendent of Schools executed a Petition for Dismissal, which contained the following "administrative charges" and "demand for relief":
ADMINISTRATIVE CHARGES
Petitioner, Dr. P. Kowal, alleges as follows:
Respondent, Debora Woessner, admits to breaking into a trailer and "trashing it."
Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00.
The above-described conduct violated Section 231.36(1)(a), Florida Statutes (1995), the Respondent's contract, the Palm Beach County School Board's Rules and Regulations, and the Code of Ethics of the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code.
Just cause exists for the requested relief, pursuant to Section 231.36(1)(a), Florida Statutes; Article II, Section M, of the collective bargaining agreement between the School District and the Palm Beach County Classroom Teachers Association; the School Board's Rules and Regulations; and Rule 6B- 4.009, Florida Administrative Code, in that Respondent has engaged in misconduct, criminal and otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft.
DEMAND FOR RELIEF
WHEREFORE, Petitioner, Dr. Joan P. Kowal, Superintendent of Schools, recommends that the School Board of Palm Beach County, Florida, immediately suspend Respondent, Debora Woessner, without further pay or benefits. The Petitioner recommends that the School Board, subsequent to providing the requisite notice, dismiss, the Respondent, Debora Woessner, from her employment as an
instructor predicated upon the foregoing facts and legal authority.
By letter dated April 28, 1997, which read as follows, Respondent, through her attorney, requested a hearing on the Superintendent of School's recommendation:
Our office has been retained for the purpose of representing Ms. Debora Woessner before the School Board of Palm Beach County, Florida, with respect to the issues raised in the Superintendent's letter dated April 14, 1997, charging Ms. Woessner with misconduct.
Ms. Woessner denies that there is any basis to support the Superintendent's recommendation for suspension without pay and contests the recommendation for her dismissal.
Ms. Woessner requests that a hearing be conducted with respect to all issues raised by the charges described above and her defense to the charges, and requests such a hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before a hearing officer appointed by the Division of Administrative Hearings.
I will speak on Ms. Woessner's behalf at the School Board meeting scheduled for May 7, 1997, when the Board will consider the propriety of the recommendation for suspension without pay and dismissal from employment.
The Criminal Proceedings
After the conclusion of the police investigation of the "trashing" of Joe's trailer and the theft and use of his credit cards, the matter was turned over to the State Attorney and Respondent was criminally charged (in Palm Beach County Circuit Court Case No. 96-13985CFA02) with one count of felony criminal mischief and one count of grand theft.
Respondent entered a guilty/"best interest" plea to both counts.
An Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in Palm Beach County Circuit Court Case No. 96-13985CFA02 on April 23, 1997. The order placed Respondent on probation for a period of five years "concurrent with each count." Among the conditions of her probation were that she have "no contact" with Joe and that she pay Joe restitution in an amount to be determined following a hearing on the matter. Such a hearing was held on May 16, 1997, after which an order was entered which provided as follows:
THIS CAUSE having come before the Court for a restitution hearing and this Court having [pr]esided at said hearing on May 16, 1997, it is hereby
ORDERED AND ADJUDGED that Defendant, Debora Woessner, pay to the victim, Joseph Scrivo, restitution in the amount of $30,238.92.
Restitution is to be a condition of the Defendant's probation sentence and shall be paid monthly in the minimum amount of $10 per month, commencing July 1, 1997 and continuing until paid in full.
Publicity
Respondent's criminal conduct was widely publicized in the community.
It was reported in the newspaper and received television coverage.
One particularly aggressive television news reporter attempted to interview Forest Hill students on school grounds to obtain their reaction to Respondent's wrongdoing. After the reporter was directed to leave, he stationed himself across the
street from the school, where he interviewed students on their way home following the end of the school day.
In addition, someone distributed in the neighborhood surrounding Forest Hill fliers which denounced Respondent as being unfit to teach as a result of her criminal conduct. Impaired Effectiveness
Teachers serve as authority figures and role models for their students.
Respondent's ability to effectively serve as a positive role model for her students has been seriously impaired by her widely publicized criminal conduct.
The May 7, 1997, School Board Meeting
The Superintendent of Schools' recommendation regarding Respondent's future employment was discussed at the Palm Beach County School Board's May 7, 1997, meeting.
At the May 7, 1997, meeting, Respondent's attorney argued that the School Board was prohibited by the Americans with Disabilities Act (ADA) from taking adverse action against Respondent and that it was required by the ADA to provide her with an accommodation.
The School Board decided not to take any action on the Superintendent of School's recommendation regarding Respondent's future employment until it received further information concerning Respondent's entitlement to protection under the ADA. Correspondence Concerning Respondent's ADA Claim
On May 9, 1997, the School District's General Counsel sent Respondent's attorney a letter, which read as follows:
On Wednesday, May 7, 1997, you appeared before the board on behalf of Debora Woessner. That evening you advised that Ms. Woessner had sought an ADA accommodation, and that her rights were violated due to the District's failure to accommodate her. As of today's date, we have had no information regarding this employee's request for an accommodation.
No later than Monday, May 12, 1997, we would request a letter via facsimile to the attention of Dianne Howard, our Risk Manager, at (561) 434-8103 with regard to the following:
Please outline the nature of your client's disability.
Please outline how this disability affects her major life activity.
Please advise as to the accommodation she is seeking.
This information is critical for the District's consideration of your request. The consideration must be arrived on or before May 16, 1997. If this information is not received by Monday, and the meeting cannot be scheduled before May 16, 1997, th[e]n termination which was predicated on criminal activity, admitted by your client, will proceed at the next regularly scheduled Board meeting on May 21, 1997.
Respondent's attorney responded to this letter from the School District's General Counsel by letter dated May 12, 1997, which read as follows:
I am in receipt of your letter of May 9, 1997 regarding Debora Woessner. For clarification, my statements to the Board indicated that Ms. Woessner was requesting, through her attorney, an accommodation. I further stated that Ms. Woessner was in
possession of School Board Policy 3.06, and that the School Board should allow the District's ADA process to run its course before making a decision regarding Ms.
Woessner's termination. I did not state that Ms. Woessner's rights had been violated. I stated that the Board should delay acting on the recommendation so that Ms. Woessner's rights would not be violated. Regarding your statement that the District has no information regarding Ms. Woessner's request for an accommodation, I stated at the meeting that (1) Ms. Woessner has been diagnosed with a psychiatric disability specifically defined by the DSM IV, (2) this disability affected a major life activity, i.e., interacting with people, (3) the actions for which the Superintendent recommended discipline for Ms. Woessner were directly related to her disability, (4) my client was directly in the process of getting information required by the district from the individual treating her for her disability, and that the district would be informed as to what accommodation was appropriate.
Regarding the request contained in the letter, I spoke with Darren Edwards of your office on the afternoon of May 9, 1997 and informed him that Ms. Woessner would provide the requested information as early as possible. As I have previously informed you, and as I informed Mr. Edwards during the aforementioned conversation, Ms. Woessner obtained a copy of School Board Policy 3.06, and is in the process of complying with its dictates. Because of the nature of the information required by the Policy and the strictness of the Policy, it is not possible for Ms. Woessner to comply with your request that she have all information you requested in Ms. Howard's office by this afternoon.
I would further note that this is the first time in the many instances in which I have dealt with the Palm Beach County School District on ADA accommodation questions that a deadline has been imposed on an employee. I have checked Policy 3.06 and can find no mention of a deadline within which an employee must provide the requested information. In short, it appears that Ms.
Woessner has been singled out for special treatment. I consider this to be not only inappropriate, but possibly unlawful. I would also point out that your request implies that the information requested should come from me, Ms. Woessner's attorney, and not a mental health counselor.
In short, it is my client's intention to comply with the District's ADA policy as quickly as possible. If you have any questions regarding this matter, please do not hesitate to contact my office.
In a letter sent to Respondent's attorney on May 12, 1997, the School District's General Counsel acknowledged receipt of his May 12, 1997, letter and further stated the following:
Ms. Woessner was reassigned to her home with pay in November, 1996. Over the past six months, and during several conferences with Ms. Woessner, there has never been any mention of her alleged disability or request for an accommodation. The principal confirmed that during the last nine years, Ms. Woessner never indicated she suffered any mental disability. Certainly no request for an accommodation was ever made. However, Ms. Woessner was very aware of our ADA policy since she had requested on prior occasions, ADA accommodations for her allergies.
Irrespective of the ADA claim which has only recently been made, Ms. Woessner acknowledged her actions which comprise the felony charges against her. After admitting to the charges, termination proceedings were commenced. It was only at the eleventh hour, when the Board was asked to proceed with her termination of employment, did you state that Ms. Woessner was suffering from a disability. Although the administration sought termination
related to Ms. Woessner's admitted criminal behavior, we agreed to consider your request on your client's behalf. We asked you to specify the nature of the disability, how it affected a major life activity, and the specific accommodation she was seeking. Your letter to the District indicates that this
information will not be provided in the time frame requested.
As a matter of law and in accordance with the very same case you cited (Hindman v. GTE), the District has never been made aware of the disability allegedly suffered by your client at the time of the incident, at the District meeting, or when she was notified of the termination proceedings. There was no request for an accommodation which specifies the accommodation, as required by the ADA either prior to her criminal behavior, nor after she was notified in April of the termination proceedings.
The District will proceed with the termination proceedings on May 21, 1997.
On May 21, 1997, ten to fifteen minutes before the start of the School Board meeting scheduled for that day, Respondent's attorney handed the School District's Chief Personnel Officer a letter addressed to Diane Howard, the School District's Director of Employee Benefits and Risk Management, which read as follows:
Enclosed please find a copy of an affidavit executed by Dr. Mark Ellinger. Dr. Ellinger is Debora Woessner's psychologist and has provided the affidavit to assist Ms. Woessner in obtaining an accommodation for a disability pursuant to School Board Policy 3.06.
Ms. Woessner is a teacher assigned to Forest Hill Elementary School, and holds a Professional Services Contract. Her Social Security Number is . . . . As you can see from the Affidavit, Ms. Woessner has had some recent difficulties related to her disability, and has been recommended for suspension without pay and termination by the District. Ms. Woessner's position, which is supported by her Doctor, is that the actions for which she is being terminated are directly related to her disability and that she can continue her teaching position if she is provided with a reasonable accommodation.
Ms. Woessner has already provided her doctors with releases so that the School Board can obtain her medical records. Dr. Ellinger's address and telephone number are as
follows: . . . .
I will provide you with similar information for Dr. Yetz in the near future.
Please keep in mind that this correspondence, and the attached affidavit, are confidential pursuant to both the Americans with Disabilities Act and Florida Statutes. As such, copies may not be provided to the press, or any individual not involved with making a determination of whether Ms.
Woessner is entitled to an accommodation.
If you have any questions regarding the matter covered in this letter or the affidavit, please do not hesitate to contact my office.
The affidavit of Dr. Ellinger, which was appended to letter, read as follows:
I am a clinical psychologist working in Palm Beach County, and have been treating Debora Woessner since August 15, 1994, for mood and substance abuse problems.
In addition to being treated by me, Ms. Woessner sees Dr. Yetz, a [p]sychiatrist, for medication.
The specific diagnos[e]s for Ms. Woessner are Depressive Disorder, not otherwise specified (311.00 DSM IV) and Cannabis Dependence (304.30, DSM IV) with sustained partial remission.4
The medication Ms. Woessner takes significantly reduces the severity of her disorder.5
Ms. Woessner's disorders are directly related to her to having grown up in a situation where she was physically and psychologically abused, which later manifested itself in psychiatric problems such as depression, substance abuse, and relationship problems.
Ms. Woessner's disorders interfere with her ability to interact with others, and impact her work. More specifically, Ms. Woessner's disorder, particularly in the absence of the medication prescribed by her psychiatrist, significantly restricts her ability to interact with others as compared to the average person in the general population.
Ms. Woessner was involved in an incident in November of 1996 where she damaged a man's trailer and used his credit cards to make purchases without his assent.
Had it not been for her abusive childhood and its subsequent psychiatric illness, Ms. Woessner would not have acted out in such an aggressive manner. Her psychological problems directly caused and are related to the incident that occurred in November.
It is highly unlikely that Ms. Woessner will repeat such actions in the future.6
Ms. Woessner is a good, dedicated and caring professional who genuinely wants the best for her students. Her profession has always given a sense of pride, meaning and structure to her life. Ms. Woessner loves her work, which is a central part of her identity.
Ms. Woessner has been a hard worker in psychotherapy and has with tenacity chipped away at her various problems with success. She has been consistent in therapy and follows up on recommendations to better herself and resolve her problems.7
Ms. Woessner does not represent a threat to herself or anyone and her problems are treatable.
Ms. Woessner should receive a leave of absence until the beginning of the 1997-1998 school year so that she can resolve her problems. During this time, Ms. Woessner will be treated for her problems and will undergo testing to ensure that her problems have been resolved.8
It was not until September of 1997 that Howard received the May 21, 1997, letter from Respondent's attorney's and the attached affidavit of Dr. Ellinger. Upon receiving these documents, she prepared and then sent to Respondent's attorney the following written response:
I am in receipt of your letter dated May 21, 1997 and directed to my attention. I am sorry for the delay in response, however, I just received this letter on September 17.
It came to my attention through our Legal
Counsel as they were preparing for a hearing. I am sorry I never received this before, but I will try to answer it now.
Your letter indicates you are asking for an accommodation for Debora Woessner. You are providing an affidavit from a clinical psychologist indicating that Ms. Woessner suffers from depressive disorder and cannabis dependence. You do not state a specific type of reasonable accommodation in your letter, however, the affidavit provided by Mark Ellinger, the Clinical Psychologist, indicates that allowing Ms. Woessner a leave of absence for the rest of the school year would give her time to treat [her] for her problems.
While a depressive disorder may be considered a disability under the ADA, and a leave of absence can be an acceptable accommodation, we do not usually require that leave requests go through as an ADA accommodation. The School District leave policy is so generous that we would allow her to have a medical leave without going through the ADA process.
I do understand that Ms. Woessner has since been terminated from the School District and that the first time that the ADA accommodation request was brought up was at a School Board meeting when the School Board was considering her termination. Apparently your client was terminated for misconduct, specifically destruction of property, breaking and entering and theft. Even if I could consider making an accommodation for your client's problems, I could never accommodate destruction of property, breaking and entering and theft. We can accommodate time to take the medication, other things like leave of absence, but not improper behavior.
I am enclosing a copy of the new School Board policy with a form that should be completed if you think you have anything else to offer that could be considered. I do believe that the time to bring up an accommodation request would have been prior to a termination hearing.
The School Board's Action
Contrary to what Howard had stated in her letter, Respondent had not been terminated by the School Board. The School Board had merely suspended Respondent without pay (effective following the end of the 1996-1997 school year) pending the outcome of this dismissal proceeding.
The Collective Bargaining Agreement
As a teacher employed by the School District, Respondent is a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract).
Article I, Section D, of the CTA Contract addresses the subject of "management rights." It provides as follows:
The [School] Board hereby retains and reserves unto itself, the Superintendent, the principals and other administrative personnel of the School System, all powers, rights, authority, duties and responsibilities, and the exercise thereof, as conferred upon and vested in them by the Constitution and the Law and the Regulations of the United States and the State of Florida, and the policies of the School Board of Palm Beach County, in keeping with the provisions of this Agreement.
Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provides as follows:
Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing
evidence which supports the recommended disciplinary action.
All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.
Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative.
An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties.
Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited.
Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties.
Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations,9 progressive discipline shall be administered as follows:
Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and
shall not be used to the further detriment of the employee after twelve months of the
action/inaction of the employee which led to the notation.
Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.
Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.
Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.
Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.
An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters. See Section 231.001, Florida Statutes.
A district school board may suspend or dismiss its employees for proper or just cause. See Sections 230.23(5)(f),
231.36 and 447.209, Florida Statutes; see also Article II, Section M, of the CTA Contract.
An instructional employee of a district school board, like Respondent, who holds a professional service contract may be suspended or dismissed at any time during the term of the employee's contract pursuant to Section 231.36(6)(a), Florida Statutes, for, among other reasons, "misconduct in office," "conviction of a crime involving moral turpitude," "immorality," or any other reason amounting to "just cause," as described in Section 231.36(1)(a), Florida Statutes.10 "[W]henever [such] charges are made against the employee," the School Board "may
suspend such person without pay; but, if the charges are not
sustained, the employee [must] be immediately reinstated, and his or her back salary [must] be paid." Section 231.36(6)(a), Florida Statutes.
"Misconduct in office," as that term is used in Section 231.36, Florida Statutes, is defined in subsection (3) of Rule 6B-4.009, Florida Administrative Code, as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.001, Florida Administrative Code, which is referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides as follows:
Code of Ethics of the Education Profession in Florida
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.
Subsection (2) of Rule 6B-4.009, Florida Administrative Code, defines "immorality," as that term is used in Section 231.36, Florida Statutes, as follows:
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.
A "crime involving moral turpitude," as that term is used in Section 231.36, Florida Statutes, is defined in subsection (6) of Rule 6B-4.009, Florida Administrative Code, as follows:
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
The crimes with which Respondent was charged and to which she pled guilty in Palm Beach County Circuit Court Case No. 96-13985CFA02 are "crime[s] involving moral turpitude," within the meaning of Section 231.36, Florida Statutes. See Cirnigliario v. Florida Police Standards and Training Commission,
409 So.2d 80, 81 (Fla. 1st DCA 1982)("violati[on of] 18 U.S.C.
s. 656 by knowingly and willfully embezzling, abstracting, purloining and misapplying less than $100.00" held to be crime involving moral turpitude); Matala v. Department of Banking and Finance, No. 93-5603 (Fla. DOAH January 27, 1994 (Recommended Order)("As a general rule it may be said that almost all crimes involving fraud, larceny, or dishonest dealing involve moral turpitude."); Morgan v. Latcham, No. 93-0019 (Fla. DOAH September 2, 1993)(Recommended Order)(teacher engaged in immoral conduct by attempting to steal generator from home improvement store); Dade County School Board v. Villa, Nos. 92-2911 and 92-
7414 (Fla. DOAH August 24, 1993)(Recommended Order)("Respondent's attempts to hire students to damage cars belonging to his ex-wife and his co-employees constitutes immoral conduct. Lastly,
Respondent's vandalism of his colleague's car constitutes immoral conduct. All of these acts are inconsistent with the standards of public conscience and good morals . . . ."); School Board of Palm Beach County v. Kenny, No. 88-1441 (Fla. DOAH February 6, 1989)(Recommended Order)(burglary and grand theft constitute "conduct . . . inconsistent with public conscience and good morals"); Kimble v. Worth County R-III Board of Education, 669
S.W. 2d 949, 953 (Mo. Ct. App 1984)("The taking of property belonging to another without consent, notwithstanding its return when confronted with such wrongdoing, breaches even the most relaxed standards of acceptable human behavior, particularly so with regard to those who occupy positions which bring them in
close, daily contact with young persons of an impressionable age."); Lesley v. Oxford Area School District, 420 A. 2d 764, 766 (Pa. Commw. Ct. 1980)("The term immorality, while not defined in the Code has been judicially defined as 'a course of conduct [that] offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate.' . . . Clearly, shoplifting falls squarely within this definition.").
A teacher who commits these "crime[s] involving moral turpitude" engages in "conduct that is inconsistent with the standards of public conscience and good morals" and violates the Code of Ethics of the Education Profession in Florida, specifically Rule 6B-1.001(3), Florida Administrative Code, by failing to "sustain the highest degree of ethical conduct." See Morgan v. Latcham, No. 93-0019 (DOAH September 2, 1993)(Recommended Order).
If the teacher is criminally charged and pleads guilty to having committed these crimes, but adjudication of guilt is withheld, as in the instant case, there is no criminal "conviction," as that term is used in Section 231.36, Florida Statues. See Childers v. Department of Environmental Protection, 696 So. 2d 962, 965 (Fla. 1st DCA 1997)("In short, as the Supreme Court of Florida observed last century, 'numerous authorities' define conviction to mean a judge or jury's determination of guilt, while 'numerous (other) authorities . . . hold the judgment or sentence to be a necessary component part of
'conviction.' . . . Context must be looked to, but offers little guidance here. Regulatory statutes that define convictions broadly to include guilty pleas or other possible steps in a criminal prosecution, . . . underscore the ambiguity in section 370.092, Florida Statutes (1995), which leaves 'convicted' undefined. A licensee whose livelihood hangs in the balance is entitled to the benefit of this ambiguity."); School Board of Pinellas County v. Noble, 384 So. 2d 205, 206 (Fla. 1st DCA 1980)("Section 231.36(6) provides in part that 'the school board shall hold a public hearing . . . to determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated.' This
statute is in effect a penal statute, as it imposes sanctions, including suspension or dismissal of an employee under continuing contract when he is found guilty of violating the statute's proscriptions. . . . . Consequently, the statute must be strictly construed, and, if there are any ambiguities within it, they must be construed in favor of the employee."); Gainey v.
School Board of Liberty County, 387 So. 2d 1023, 1029 (Fla. 1st DCA 1980)("As this court has previously noted, this statute [Section 231.36, Florida Statutes] is in effect a penal statute, which must be strictly construed, and any ambiguities must be construed in favor of the employee."); School Board of Palm Beach County v. Kenny, No. 88-1441 (Fla. DOAH February 6, 1989)(Recommended Order)("The proof fails to establish that
Respondent has been convicted of any crime. To the contrary, the sentencing court's order [entered after the employee had entered a guilty plea] specifically withheld a formal determination of Respondent's guilt of the charged felony offenses. Therefore, Respondent is not technically guilty of conviction of a crime involving moral turpitude.").
While the teacher may not be "technically guilty of conviction of a crime involving moral turpitude," the teacher's guilty plea may be used to establish that the teacher committed such a crime and thereby engaged in immorality and violated the Code of Ethics of the Education Profession in Florida. See Boshnack v. World Wide Rent-A-Car, 195 So. 2d 216, 218 (Fla. 1967); Estate of Wallace v. Fisher, 567 So. 2d 505, 508 (Fla. 5th DCA 1990); MacNeil v. Singer, 389 So.2d 232, 234 (Fla. 5th DCA 1980); School Board of Palm Beach County v. Kenny, No. 88-1441 (Fla. DOAH February 6, 1989; Brown v. City of Hialeah, 30 F.3d 1433, 1437 (11th Cir. 1994). Although it may be considered as evidence of the teacher's guilt, a guilty plea that was entered as a plea of convenience11 is not conclusive evidence that the teacher committed the crime to which he or she pled guilty. The teacher must be given an opportunity to explain the circumstances surrounding the plea and to otherwise contest the inference of guilt arising from the plea. See The Florida Bar v. Schreiber, 631 So. 2d 1081, 1082 (Fla. 1994); The Florida Bar v. Marks, 492 So. 2d 1327, 1328 (Fla. 1986); The Florida Bar v. Lancaster, 448 So. 2d 1019, 1021-22 (Fla. 1984); Kinney v. Department of State,
Division of Licensing, 501 So. 2d 129, 132 (Fla. 5th DCA 1987).
To establish that a teacher is guilty of "immorality," as defined in Rule 6B-4.009(2), Florida Administrative Code, not only must it be shown that the teacher engaged in "conduct that is inconsistent with the standards of public conscience and good morals," it must also be shown that, by engaging in such conduct, the teacher impaired his effectiveness within the community. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996).
Likewise, proof that the teacher committed a violation of the Code of Ethics of the Education Profession in Florida, standing alone, is insufficient to establish "misconduct in office," as that term is used in Section 231.36, Florida Statutes, and defined in Rule 6B-4.009(3), Florida Administrative Code. Impairment of the teacher's "effectiveness in the school system" as a result of the violation must also be shown. See Braddock v. School Board of Nassau County, 455 So. 2d 394, 396 (Fla. 1st DCA 1984).
A teacher whom a district school board seeks to suspend or dismiss pursuant to Section 231.36(6)(a), Florida Statutes, must be notified in writing of the school board's charges. Although the school board's notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the rule [or statute] the [district school board] alleges has been violated and the conduct which occasioned the violation of the rule [or statute so
specified]." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring); see also Article II, Section M2, of the CTA Contract("[A]n employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.").
If the teacher desires to contest the school board's charges, the teacher:
must, within 15 days after receipt of the written notice [of the charges], submit a written request for a hearing. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:
A direct hearing conducted by the school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57.12 A majority vote of the membership of the school board shall be required to sustain the superintendent's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or
A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter
120. The recommendation of the administrative law judge shall be made to the school board. A majority vote of the membership of the school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
Any such decision adverse to the employee may be appealed by the employee pursuant to s.
120.68, provided such appeal is filed within
30 days after the decision of the school board.
Section 231.36(6)(a), Florida Statutes.
At the hearing held at the teacher's request, the burden is on the district school board to prove that there is just cause to suspend or dismiss the teacher. Ordinarily, the school board's proof need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal.");
Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were
true . . . ."); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard."). Where, however, the district school board, through the collective bargaining process, has agreed to bear a more demanding standard,13 it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 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."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment ");
Palm Beach County School Board v. Auerbach, No. 96-3683 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement,14 which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence. The text of the agreement does not support the district’s contention that this standard of proof in the collective bargain agreement applies only when an employee appeals through the grievance procedure. By agreement, in collective bargaining, a school district may limit or abridge its authority to discipline continuing contract teachers."). Inasmuch as the School Board has entered into a collective bargaining agreement with Respondent's collective bargaining representative which provides, in pertinent part, that just cause for disciplinary action "must be substantiated by clear and convincing evidence," the School Board may not suspend or dismiss Respondent or any other instructional employee covered by that agreement absent clear and convincing evidence that there is just cause to take such action.
"'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Furthermore, any disciplinary action taken by the School Board against one of its instructional employees must be based upon charges that the School Board timely and properly notified the employee would be litigated at hearing. See Macmillan v. Nassau County School Board, 629 So. 2d 226, 229 (Fla. 1st DCA 1993). Where the School Board and the employee have entered into a prehearing stipulation reflecting their agreement that remaining for resolution is, among other things, the issue of whether the employee should be disciplined based upon grounds not specifically alleged in any previously served accusatory or charging instrument, disciplinary action against the employee may be taken based upon such grounds, if the proof submitted at hearing supports such action. See Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1, 3 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the
Court."); Esch v. Forster, 168 So. 229, 231 (Fla. 1936)("Where parties by stipulation prescribed the issues on which the case is to be tried, they are estopped from thereafter asserting that the case was submitted on the wrong theory; . . . ."); Lotspeich v.
Neogard Corporation, 416 So. 2d 1163, 1165 (Fla. 3d DCA
1982)("Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced.").
In the instant case, the School Board issued and served on Respondent an Administrative Complaint alleging the following: "Respondent admits to breaking into a trailer and 'trashing it'"; "Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00"; and, "[a]s a result of the foregoing, the[re is] JUST CAUSE to dismiss the [R]espondent due to her MISCONDUCT, criminal or otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft." Thereafter, prior to the final hearing, the School Board and Respondent entered into a prehearing stipulation. In their prehearing stipulation, the parties agreed that "remain[ing] for determination" was the issue of "[w]hether Respondent's actions constitute acts of immorality, crimes of moral turpitude, or alternatively, acts of misconduct constituting grounds for termination, individually, alternatively, or collectively, pursuant to Section 231.36(1)(a), Florida Statutes, Florida Administrative Code [Rule] 6B-4.009(3) or (6), 6B-1.001(3), or School Board Rule 3.27, and are in violation of the parties collective bargaining agreement, Article II, Section M."
The evidence presented at the final hearing clearly and convincingly establishes that: Respondent knowingly and
willfully committed the unethical, immoral and criminal acts ("to wit: destruction of property, breaking and entering, and theft") described in the Administrative Complaint;15 she appreciated the wrongfulness of her actions; in committing these wrongful acts, she acted in a manner "inconsistent with the standards of public conscience and good morals"16 and, contrary to the requirements of the Code of Ethics of the Education Profession in Florida, specifically Rule 6B-1.001(3), Florida Administrative Code, she failed to "sustain the highest degree of ethical conduct"; her egregious conduct, due to the publicity it received, has impaired her effectiveness in the school system and the community and therefore constitutes "misconduct in office," as used in
Section 231.36, Florida Statutes, and defined in Rule 6B- 4.009(3), Florida Administrative Code, and "immorality," as used in Section 231.36, Florida Statutes, and defined in Rule 6B- 4.009(2), Florida Administrative Code;17 and, given its serious nature and the extent to which it has impaired her effectiveness to teach, such "misconduct in office" and "immorality" warrant her dismissal18 pursuant to Section 231.36(6)(a), Florida Statutes, and Article II, Section M7, of the CTA Contract, which provides that the School Board need not administer "progressive discipline" in cases which "clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations."19 See Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla.
1st DCA 1975)("Although Tomerlin's immoral act was done at his home and after school hours, it was indirectly related to his job. His conduct is an incident of a perverse personality which makes him a danger to school children and unfit to teach them.
Mothers and fathers would question the safety of their children; children would discuss Tomerlin's conduct and morals. All of these relate to Tomerlin's job performance. . . . A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children."); McBroom v. Board of Education, District N. 205, 494
N.E. 2d 1191, 1196-98 (Ill. App. Ct. 1986)("A teacher's theft of a student's property did, once it became a matter of general knowledge, have a substantial adverse impact on plaintiff's effectiveness as a teacher. We are cognizant of the special position of leadership occupied by a teacher who serves as a role model and instills the basic values of our society. The high school students whom plaintiff teaches are at an impressionable age. As a consequence, plaintiff's involvement in the theft would have and, as the evidence reveals, did have a major deleterious effect upon the school. . . . Plaintiff's theft of a student's property on school grounds would hinder her ability to enlighten students as to proper behavior in our society. While the psychiatrist [who was treating her for major depression]
testified that the possibility of a recurrence is slight, this factor does not, in our opinion, outweigh the substantial damage to the students and the school. Plaintiff did not present any evidence in rebuttal to the Board's evidence that she could no longer teach honesty or serve as an effective role model. We must conclude that plaintiff's criminal conduct and other aggravating factors constitute sufficient cause to warrant discharge. . . . In our view, remediable conduct is misconduct by a teacher, in her ordinary course of duties, which if called to her attention, can ordinarily be remedied. . . . We hold the concept was not intended to apply to criminal conduct which has no legitimate basis in our society. Teachers, as leaders and role models, with their education and background, have the duty to implant basic societal values and qualities of good citizenship in their students. To claim that such conduct [the plaintiff's theft of the student's property] was remediable distorts the thrust and purpose of the rule. Criminal activity of this nature is conduct which cannot be remedied by warning.
We conclude, therefore, that the conduct here is irremediable."); Lesley v. Oxford Area School District, 420 A. 2d 764, 766 (Pa.
Commw. Ct. 1980)("Mrs. Lesley finally asserts that her act of shoplifting was the result of a temporary mental instability brought on by physical and emotional stresses, that it is her only discreditable action during ten years of service to the School District, and that she should therefore not have been declared to be disqualified for immorality. The circumstances
described are mitigating but they cannot 'eradicate the result or change the complexion of her acts.' . . . The School Board to whom the matter of dismissal, or not, is committed had these circumstances before it and doubtless believed, nevertheless, that the result and complexion of Mrs. Lesley's act of shoplifting were such that her effectiveness as a teacher at Oxford has ended.").
Respondent contends that, because the misconduct for which the School Board seeks to dismiss her was related to her mental health problems, her dismissal for having engaged in such misconduct is prohibited by the ADA and its Florida counterpart, the Florida Civil Rights Act of 1992 (FCRA), as well as by Article I, Section 2, of the Florida Constitution, which provide, in pertinent part, as follows:
ADA
Section 12112. Discrimination [Title I]
General rule
No covered entity20 shall discriminate against a qualified individual with a disability21 because of the disability of such individual in regard to . . . discharge of employees . . . and other terms, conditions, and privileges of employment.
Construction
As used in subsection (a) of this section, the term "discriminate" includes-- . . .
(5)(A) not making reasonable accommodations22 to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship23 on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or
applicant; . . . .
Section 12132. Discrimination [Title II]
Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
FCRA
760.10 Unlawful employment practices.--
It is an unlawful employment practice for an employer:
To discharge . . . or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . . . handicap . . . .
Notwithstanding any other provision of this section, it is not an unlawful employment practice under 760.01-760.10 for an employer to:
Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related. . . .
Article I, Section 2, of the Florida Constitution
Basic Rights.--All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; No
person shall be deprived of any right because of race, religion or physical handicap.
Respondent's argument that her dismissal would violate these
statutory and constitutional provisions is not a persuasive one. An employee with a disability who, like Respondent, commits serious misconduct, which results in the impairment of the employee's ability to effectively discharge the essential duties of the employee's position and for which a similarly situated nondisabled employee would be dismissed, is protected by neither the ADA, FCRA,24 nor Article I, Section 2, of the Florida Constitution25 from dismissal based upon such misconduct, even if the misconduct was the product of the employee's disability. See The Florida Bar v. Clement, 662 So. 2d 690 (Fla. 1995)(ADA would not prevent attorney suffering from mental disorder from being disbarred for misappropriating client's funds, even if referee had found causal connection between disorder and attorney's misconduct); Lavery v. Department of Highway Safety and Motor Vehicles, 523 So. 2d 696, 697 (Fla. 3d DCA 1988)(notwithstanding that state trooper was "'polydrug' addict," his dismissal for "violat[ing] the Florida criminal drug abuse statutes by using cocaine over a sustained period of time, which illegal use resulted in poor work performance . . . did not violate the public policy of Florida or federal or state laws prohibiting discrimination against the handicapped"); Leary v. Dalton, 58 F. 3d 748, 753-54 (1st Cir. 1995)("[E]ven if Leary had given the Navy sufficient notice of his need for accommodation,26 the Act neither prevents employers from holding 'persons suffering from alcoholism . . . (to) reasonable rules of conduct,' nor protects alcoholics from the consequences of their own misconduct. . . .
As we have observed, government entities have the discretionary authority to determine what policies are necessary to the execution of their assigned missions. . . . We hold that the Navy may reasonably apply its no-leave-for-incarceration policy to all of its employees, disabled and non-disabled alike. . . .
From our discussion above, it follows that Leary's disability was not a reason for his termination. The Navy placed Leary on unauthorized leave status before he ever sought to connect his incarceration to his alcoholism. The record leaves us with no doubt that the Navy applied its no-leave policy to Leary without regard to his disability, and ultimately discharged Leary because and only because of his excessive unauthorized absence."); Taub v. Frank, 957 F. 2d 8, 10-11 (1st Cir. 1992)("The Postal Service requires that its employees be 'honest, reliable,
trustworthy . . . and of good character and reputation,' and specifically prohibits its employees from engaging 'in
criminal . . . conduct. . . .' . . . . The MSPB [Merit Systems Protection Board] supportably found, and Taub does not dispute, that he engaged in criminal conduct both by possessing heroin and by distributing it. Criminal conduct which undermines '[p]ublic confidence in the integrity of the mails' has been determined 'inconsistent with the trust and confidence' legitimately required of Postal Service employees. . . . Furthermore, such conduct could not be accommodated by the Postal Service without a 'substantial modification' of its requirements. Thus,
Taub's criminal conduct was a sufficient basis upon which to
conclude that he was not a 'qualified handicapped person' [entitled to the protection of the Rehabilitation Act27]"; Taub's termination by the Postal Service for possessing heroin and possessing heroin with the intent to distribute therefore not barred by Rehabilitation Act, notwithstanding Taub's addiction to heroin); Copeland v. Philadelphia Police Department, 840 F. 2d 1139, 1149 (3d Cir. 1988)("We conclude that accommodating a drug user within the ranks of the police department would constitute a 'substantial modification' of the essential functions of the police department and would cast doubt upon the integrity of the police force. No rehabilitation program can alter the fact that a police officer violates the laws he is sworn to enforce by the very act of using illegal drugs. Because a police department is justified in concluding that it cannot properly accommodate a user of illegal drugs within its ranks, we conclude that Copeland is not otherwise qualified for the position and thus does not qualify for the protections afforded by the [Rehabilitation] Act."); Little v. Federal Bureau of Investigation, 1 F. 3d 255,
259 (4th Cir 1993)("[I]t is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped. On the record before us, it plainly appears that the appellant was fired because of his misconduct, not because of his alcoholism. The 'Notification of Personnel Action' of January 17, 1991, indicated that Little's dismissal was 'taken in view of his inability to conform to the FBI's
established standards that special agents must remain mentally and physically fit for duty at all times.' Without
attempting to recite in detail the duties of an FBI special agent, it is certain that being intoxicated while on duty will undoubtedly prevent an FBI special agent from being 'mentally and physically fit for duty at all times'"; held that Little "failed to state a claim under the Rehabilitation Act"); Martinson v.
Kinney Shoe Corporation, 104 F. 3d 683, 686 n.3 (4th Cir 1997)("[M]isconduct--even misconduct related to a disability--is not itself a disability, and an employer is free to fire an employee on that basis."); Hamilton v. Southwestern Bell Telephone Company, 1998 WL 96779 (5th Cir. March 23, 1998)("Furthermore, even if Hamilton were disabled, the ADA requires that BELL's adverse employment action be taken because of his disability. Hamilton was not terminated because of his disability but rather because he violated BELL's policy on workplace violence. . . . Although Hamilton argues that the incident was caused by his PTSD [Post Traumatic Stress Syndrome Disorder], we are persuaded that the ADA does not insulate emotional or violent outbursts blamed on an impairment. An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim. BELL had instituted its policy against workplace violence, with provisions for suspension and dismissal for 'extremely severe' offenses, before Hamilton's misconduct. As a BELL employee, Hamilton was held accountable for violating this policy. . . . The cause of Hamilton's
discharge was not discrimination based on PTSD but was rather his failure to recognize the acceptable limits of behavior in a workplace environment. The nature of the incident, shown by the record, presents a clear case in which Hamilton was fired for his misconduct in the workplace. We adopt for an ADA claim the well- expressed reasoning applied in the context of a protected activity-retaliatory discharge claim: the rights afforded to the employee are a shield against employer retaliation, not a sword with which one may threaten or curse supervisors. Hamilton cannot hide behind the ADA and avoid accountability for his actions"; summary judgment dismissing Hamilton's ADA claim affirmed); Gray v. Champion International Corporation, 134 F. 3d
371 (6th Cir. 1997)(table/unpublished disposition) ("Gray's outrageous conduct was clearly in violation of company policy. Given Gray's failure to allege pretext (i.e., a claim that the discharge was based on Gray's disability, as opposed to his disability caused conduct) he cannot prevail on his ADA claim."); Maddox v. University of Tennessee, 62 F. 3d 843, 848-49 (6th Cir. 1995)("Employers subject to the Rehabilitation Act and ADA must be permitted to take appropriate action with respect to an employee on account of egregious or criminal conduct, regardless of whether the employee is disabled. . . . Likewise, suppose an alcoholic becomes intoxicated and sexually assaults a coworker? We believe that it strains logic to conclude that such action could be protected under the Rehabilitation Act or the ADA merely because the actor has been diagnosed as an alcoholic and claims
that such action was caused by his disability. Maddox
finally contends that UT's conclusion that he is no longer qualified to be an assistant coach at UT is without merit. Maddox claims that his misconduct did not affect his 'coaching' responsibilities because an assistant coach's duties are limited to the practice and playing fields, and do not comprise of serving as a counselor or mentor to the players or serving as a representative of the school. Maddox relies on the fact that none of these functions were explained to him in his formal job description. We first note that this allegation seems more appropriate for determining whether he was 'otherwise qualified' rather than whether he was discharged because of his disability. Nevertheless, Maddox's position is simply unrealistic. It is obvious that as a member of the football coaching staff, Maddox would be representing not only the team but also the university. As in the instant case, UT received full media coverage because of this 'embarrassing' incident. The school falls out of favor with the public, and the reputation of the football program suffers. Likewise, to argue that football coaches today, with all the emphasis on the misuse of drugs and alcohol by athletes, are not 'role models' and 'mentors' simply ignores reality"; summary judgment dismissing Maddox's claim under Rehabilitation Act and ADA that he was terminated because of his disability (alcoholism) affirmed); Landefeld v. Marion General Hospital, Inc., 994 F. 2d 1178, 1183 (6th Cir. 1993)(Nelson, J.,
concurring)("Turning first to the initial act of the hospital in
suspending the plaintiff's staff privileges, it is clear that the suspension was a direct result of the hospital's discovery that it was the plaintiff who had been removing medical correspondence and other material from the boxes of other doctors at the hospital. There is no dispute about this. Whether the hospital knew or had reason to know that the plaintiff's conduct was attributable to mental illness [bipolar disorder] is immaterial, in my view; no hospital could be expected to tolerate the theft of correspondence addressed to physicians on its staff"; summary judgment dismissing Landefeld's claim under Rehabilitation Act affirmed); Pesterfield v. Tennessee Valley Authority, 941 F. 2d 437, 441-42 (6th Cir. 1991) ("Based on Dr. Paine's [Pesterfield's psychiatrist's] June 17, 1980 letter, the district court concluded that plaintiff had a mental impairment which substantially limited his ability to work. The court also concluded that plaintiff was not a 'qualified handicapped person' since he was not capable of performing the essential functions of his work. As the court stated, 'Plaintiff's job of tool room attendant required at least the ability to get along with supervisors and co-workers. Given plaintiff's inability to tolerate even the slightest hint of rejection or criticism, it would be impossible for him to perform the essential functions of his work.' Therefore, the court concluded, there is no reasonable accommodation which TVA could have instituted which would have permitted plaintiff to perform the essential functions of his job. We do not believe that these findings are clearly
erroneous"; judgment dismissing Pesterfield's claim under Rehabilitation Act affirmed because employee "failed to prove that TVA's decision to terminate him was based upon a stereotyped attitude toward persons with psychological handicaps rather than upon a reasoned and medically supported judgment that plaintiff could not be returned to work safely under any accommodation that TVA could make"); Palmer v. Circuit Court of Cook County, Illinois, 117 F. 3d 351, 352-53 (7th Cir. 1997)("But the judgment of the district court must still be affirmed. There is no evidence that Palmer was fired because of her mental illness.
She was fired because she threatened to kill another employee.
The cause of the threat was, we may assume, her mental
illness . . . . But if an employer fires an employee because of the employee's unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. . . . The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge--in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only 'qualified' employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one. . . . It is true that an employer has a statutory duty to make a 'reasonable accommodation' to an employee's disability, that is, an adjustment in working conditions to enable the employee to
overcome his disability, if the employer can do this without 'undue hardship.' . . . But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts."); Siefken v. Village of Arlington Heights, 65 F. 3d 664, 666 (7th Cir. 1995)("The ADA does not, however, erect an impenetrable barrier around the disabled employee, preventing the employer from taking any employment actions vis-à-vis the employee. . . . [Siefken, a police officer who was terminated after he drove his police car erratically at a high rate of speed in a residential area while experiencing a diabetic reaction] believes that he can bootstrap his disease [diabetes] into the line of causation. He argues that but for his diabetes, the incident [which led to his termination] would not have occurred. But we have never held that mere 'but for' causation is sufficient under the ADA, . . . . Under the ADA, an employer must make reasonable accommodations to enable a disabled employee to perform his job duties. When asked what accommodation Siefken would request, his counsel replied, 'A second chance.' But this is not an accommodation, as envisioned in the ADA. Siefken
is not asking for an accommodation; he is not asking the Village to change anything. He is asking for another chance to allow him to change his [diabetes] monitoring technique. But the ADA does not require this";28 dismissal of Siefken's claim under Rehabilitation Act and ADA affirmed); Despears v. Milwaukee County, 63 F. 3d 635, 637 (7th Cir. 1995)("[T]he criminal law proceeds on the premise that even alcoholics can avoid driving
while under the influence of alcohol. And if this is so, then Despears despite his alcoholism could have avoided the demotion of which he complains by avoiding driving while drunk. His disability concurred with a decision to drive while drunk to produce the loss of license and resulting demotion. The disability contributed to but did not compel the action that resulted in the demotion. To impose liability under the Americans with Disabilities Act or the Rehabilitation Act in such circumstances would indirectly but unmistakably undermine the laws that regulate dangerous behavior. It would give alcoholics and other diseased or disabled persons a privilege to avoid some of the normal sanctions for criminal activity. It would say to an alcoholic: We know it is more difficult for you to avoid committing the crime of drunk driving than it is for healthy people, and therefore we will lighten the sanction by letting you keep your job in circumstances where anyone else who engaged in the same criminal behavior would lose it. The refusal to excuse, or even alleviate the punishment of, the disabled person who commits a crime under the influence as it were of his disability yet not compelled by it and so not excused by it in the eyes of the criminal law is not 'discrimination' against the disabled;
it is a refusal to discriminate in their favor. It is true that the Americans with Disabilities Act and the Rehabilitation Act require the employer to make a reasonable accommodation of an employee's disability, but we do not think it is a reasonably required accommodation to overlook infractions of law"; summary
judgment dismissing Despears' claims under Rehabilitation Act and ADA affirmed); Harris v. Polk County, Iowa, 103 F. 3d 696, 697 (8th Cir. 1996)("Harris argues the ADA prohibits the county attorney from using her criminal record to reject her application because her shoplifting was caused by a mental illness. Thus, Harris contends the county attorney violated the ADA because his employment decision was based on a symptom of her mental illness. Contrary to Harris's view, the ADA does not require employers to 'overlook infractions of (the) law.' . . . We agree with the courts of appeal that recognize an employer may hold disabled employees to the same standard of law-abiding conduct as all other employees. . . . Thus, the county attorney properly rejected Harris's application for employment just as he rejected all nondisabled applicants who had a criminal record."); Collings v. Longview Fibre Co., 63 F. 3d 828, 832-33 (9th Cir.
1995)("Courts have recognized a distinction between termination of employment because of misconduct and termination of employment because of a disability. . . . [I]n this case, Longview terminated the employees on the basis of their drug-related misconduct. Five of the eight plaintiffs [all of whom claimed that they were disabled at the time of their misconduct due to their drug abuse problems] admitted in their interviews that they had violated company rules by buying, selling, or using marijuana at the workplace or by returning to work under its
influence. . . . Thus, with respect to those employees, Longview was entitled to act as it did in discharging them because their
misconduct, rather than any alleged disability, was the reason for their discharge."); Newland v. Dalton, 81 F. 3d 904, 906 (9th Cir. 1996)("The Rehabilitation Act does not immunize Newland from the consequences of his drunken rampage. . . . Alcoholism is a recognized handicap, . . . but the majority of courts have held that while the Rehabilitation Act ('Act') protects employees from being fired solely because of their disability, they are still responsible for conduct which would otherwise result in their termination. . . . These courts have concluded that firings precipitated by misconduct rather than any handicap do not violate the Act. See, e.g., Little, 1 F.3d at 259. While there is precedent suggesting that if the misconduct is causally related to the disability it cannot be grounds for termination, Teahan v. Metro-North Commuter R.R. Co., 951 F. 2d 511, 516-17 (2nd Cir.1991), cert. denied, 506 U.S. 815, 113 S.Ct. 54, 121
L.Ed.2d 24 (1992),29 we have adopted the approach of the Little court. . . . Newland recognizes, as he must, that he was terminated for his conduct. . . . His termination was not in retribution for his alcoholism but rather was in response to his attempt to fire an assault rifle inside a bar. . . . Thus the termination did not violate the Act. Attempting to fire a weapon at individuals is the kind of egregious and criminal conduct which employees are responsible for regardless of any disability."); Williams v. Widnal, 79 F. 3d 1003, 1006-07 (10th Cir. 1996)("Mr. Williams contends the threats he made [which led to his termination] were a direct result of his disability
[alcoholism]. We have not addressed whether an adverse action may properly be taken against a party because of an attribute caused by the handicap and not the handicap itself. Mr. Williams urges that we adopt the court's position in Teahan v. Metro- North Commuter Railroad, 951 F. 2d 511 (2d Cir.1991), cert. denied, 506 U.S. 815, 113 S.Ct. 54, 121 L.Ed.2d 24 (1992), and
hold that adverse actions taken against an employee caused by the employee's handicap are sufficient to support a claim under [the Rehabilitation Act]. In Teahan, the court held that termination which was justified as being due to absenteeism shown to be caused by substance abuse is termination 'solely by reason of' that abuse for purposes of the Act. . . . We disagree. We cannot adopt an interpretation of the statute which would require an employer to accept egregious behavior by an alcoholic employee when that same behavior, exhibited by a nondisabled employee, would require termination. We agree that 'an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.' . . . We agree with the view that 'the Act does not protect alcoholics or drug addicts from the consequences of their misconduct'"; summary judgment dismissing Williams' claim under Rehabilitation Act affirmed inasmuch as his termination "was for his egregious conduct and the threat it posed to the safety of his supervisor and co- workers"); Houck v. City of Prairie Village, 978 F. Supp. 1397 (D. Kan. 1997)("The record positively establishes that plaintiff
would have maintained his employment as a police officer at the Prairie Village Police Department in spite of his mental illness if he had not violated the law, according to the department, on February 5, 1994. The police department was aware of plaintiff's mental illness and had made accommodations to maintain plaintiff's employment prior to the February 5, 1994 incident.
On February 5, 1994, plaintiff engaged in misconduct which he has admitted could be proven to have constituted domestic battery and battery upon a law enforcement officer. This misconduct may have violated not only state criminal law, but also the rules and regulations of the police department. Plaintiff claims that his firing was discrimination because his alleged misconduct was caused by his disability. This claim must be rejected. A person who commits a criminal act as a result of a disabling condition is not excused from the employment consequences of the criminal act because of the disability."); Schutts v. Bentley Nevada Corp., 966 F. Supp. 1549, 1555 (D. Nev. 1997)("It is simply not debatable that employers may discharge employees who commit acts of misconduct. . . . An employee who commits an act of misconduct may be fired, whether he or she is disabled within the meaning of the ADA, or an astronaut or Olympic athlete. Federal and state statutes which bar discrimination do not insulate disabled employees from discharge for acts for which a non- disabled employee could certainly be fired. Aggravated battery with a deadly weapon constitutes egregious misconduct for which employees are responsible regardless of any alleged
disability. . . . Plaintiff admits in his affidavit filed in support of his opposition to summary judgment that he did attack Mark Beavers with a gun. Defendant has provided considerable evidence that it fired Plaintiff because of this act of violence. Plaintiff produces not a shred of evidence which casts any doubt upon Defendant's proffered explanation why it fired him. Even assuming (1) Plaintiff suffers from a qualifying ADA disability, and assuming further (2) that Defendant knew of his disability at the time it fired him, Plaintiff's criminal acts of violence justify Defendant's terminating his employment without any doubt whatsoever. The ADA and its Nevada counterpart do not protect Plaintiff from the consequences of his violent rage"; summary judgment entered dismissing Schutts' claim that his assault was "a product of his depression, and that therefore he had been fired 'because of' a mental disability, in violation of the Americans with Disabilities Act"); Cowan v. MaBstoa, 961 F. Supp. 37, 42 (E.D. N.Y. 1997)("Plaintiff argued that his misconduct stemmed from his drug addiction. He alleged that defendant discriminated against him on the basis of an act caused by his disability, in violation of the statute [the Rehabilitation Act]. The claim is insufficient as a matter of law. When a disabled employee is terminated after misconduct, based on no lesser authority than common sense, it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped. . . . Plaintiff's alleged
disability cannot insulate him from the discipline that would be imposed upon any other employee. He was fired because of unlawful misconduct [theft of his employer's property] that violated basic rules of loyalty for handicapped and non- handicapped employees alike."); Woolcott v. E.I. Dupont de Nemours & Company, Inc., 1997 WL 251475 (United States District Court, W.D. N.Y. April 29, 1997)("Asking for a second chance and to be absolved of one's past misconduct is not a request for an accommodation. . . . The ADA neither envisions nor requires that an employee must be given another opportunity despite his misconduct for which he was reprimanded or terminated."); Mazzarella v. United States Postal Service, 849 F. Supp. 89, 97 (D. Mass. 1994) ("Thus, the undisputed facts establish that Mr.
Mazzarella was dismissed not because he has a disabling condition, but because he acted violently and offensively and broke various rules regulating his employment. That the plaintiff's misconduct may have been a product of his psychological disorder does not justify an inference that he was fired because of his illness, rather than because of the misconduct itself."); Wilbur v. Brady, 780 F. Supp. 837 (D. D.C. 1992)("A disabled individual cannot be 'otherwise qualified' for a position if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute. The Rehabilitation Act mandates nondiscrimination against disabled individuals; it does not waive basic prerequisites to service. Engaging in serious criminal acts . . . could
disqualify anyone, regardless of ability, from continuing to serve the federal government. We must note that none of the cases cited to by plaintiff in support of his claim that the Rehabilitation Act bars his discharge are on point because in none of them did the plaintiff engage in the type of serious misconduct at issue here. The Rehabilitation Act is designed to put individuals with disabilities on equal footing with non- disabled people in regards to the hiring, promotion, and discharge decisions of the federal government and its grantees. It is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status. This is a sad episode. It is a shame that it took Kadee Wiechman's death to force Robert Wilbur to come to terms with his drinking problem. But it cannot be doubted by any reasonable viewer of these facts that Mr. Wilbur was discharged in this case because he killed a young child, not because he might have been an alcoholic. The law of this Circuit (and the law of the MSPB and the other courts which have ruled on the issue) is clear that those who commit serious misconduct will not find refuge in the Rehabilitation Act. This outcome does not, as plaintiff asserts, read the word 'rehabilitation' out of the Act. It merely recognizes that the Act is designed to help rehabilitate those who have not already disqualified themselves through their own misconduct."); Richardson v. United States Postal Service, 613 F. Supp. 1213, 1215-16 (D. D.C. 1985)("The nexus between the crime and the alcohol is, of course, highly conjectural. But even if
events of 1978 and earlier were to be examined to untangle the reasons underlying Richardson's mental difficulties and alcohol use and Richardson's alcoholism was shown to be a substantial cause of his criminal conduct, it would not benefit Richardson here. Richardson was discharged for his criminal conduct, not because of alcoholism or poor job performance due to alcohol. He does not claim otherwise. The Rehabilitation Act . . . does not prohibit an employer from discharging an employee for improper off-duty conduct when the reason for the discharge is the conduct itself, and not any handicap to which the conduct may be related."); Gedney v. Groton Board of Education, 1996 WL 512618 (Conn. Super. Ct. Sept. 4, 1996), aff'd 703 A. 2d 804 (Conn. App. Ct. 1997)("It is not the function of or proper for this Superior Court to question or second guess the 'appropriateness' of the standards by which the plaintiff was judged by the defendant board. The board did not set the standard: the legislature did. The standards for termination of a teacher are set by statute.
By statute a teacher may be discharged for 'moral misconduct' and/or 'other due and sufficient cause.' Thus, the statutory standard cannot be challenged; indeed the plaintiff has not. Nor can plaintiff require the defendant board 'to lower or effect substantial modifications of [C.G.S. Section 10-151(d)'s] standards to accommodate' him. . . . The record abundantly supports the uncontradicted, unchallenged findings of 'moral misconduct' and/or 'other due and sufficient cause.' The defendant school board concluded that the notoriety of
plaintiff's criminal use of cocaine negatively impacted 'his ability to serve as an appropriate role model for elementary age students and to serve otherwise as a teacher in the Groton School System,' and 'profoundly diminished (his) ability to effectively discharge (his) duties as a fourth grade teacher.' The board also concluded that plaintiff '(could) not serve as an appropriate role model for elementary age school children and that (plaintiff) could not credibly perform that essential function of (his) job.' Not one word has been put forth by plaintiff challenging or disputing the Hearing Officer's and the defendant board's findings and conclusions that being a role model, exemplar, etc., was a critical part of plaintiff's teaching position. Nor has there been any contention that plaintiff could credibly serve as such. Rather, plaintiff has avoided any mention of his ability to serve as an appropriate 'role model,' 'exemplar,' 'behavior example,' etc. The
decision the defendant board faced in April 1993 was whether the plaintiff could then and in the future effectively teach in the Groton school system. . . . Could he be an effective teacher thereafter in view of all that had transpired. 'Moral misconduct' is grounds for dismissal because that misconduct negatively impacts the moral value image demanded of a teacher. Similarly, the 'other due and sufficient cause' is plaintiff's despoiled value as a teacher capable of credibly promoting the 'NO [DRUG} USE' theme of 'Here's Looking At You 2000.' The board's decision was a judgment call within its authority. That
authority was not constrained by the Rehabilitation Act."); Barbera v. DiMartino, 702 A. 2d 1370, 1380-83 (N.J. Super. Ct. App. Div. 1997)("The principle invoked by Judge Petrella is recognized by the overwhelming majority of federal courts that have interpreted, in similar contexts, the Americans With Disabilities Act, 42 U.S.C.A. Section 12101 to Section 12213, and the Rehabilitation Act, 29 U.S.C.A. S 701 to S 797b. It is the almost universal view that the federal laws are intended to prevent discrimination premised upon a handicap or disability, not upon egregious or criminal conduct even if such conduct results from the handicap or disability. . . . We see no reason why we should reject the federal majority view that employers subject to laws protecting the handicapped and disabled nonetheless should be able to take appropriate action on account of egregious or criminal conduct of an employee, regardless of whether the employee's disability contributed to the
conduct. . . . We are in line with the federal authority that laws protecting the handicapped from employment discrimination are not intended to protect against crime or egregious conduct which, if committed by any other employee, would have warranted the adverse employment decision."); Collins v. Blue Cross Blue Shield of Michigan, 1998 WL 112879 (Mich. Ct. App. March 13, 1998)("The gravamen of this appeal requires us to determine whether the arbitrator committed an error of law in ruling that plaintiff was discharged because of her disability, rather than for her homicidal ideation toward her supervisor. Although we do
not dispute the arbitrator's finding of fact that plaintiff's homicidal ideation was a product of her psychiatric condition, we conclude that the arbitrator committed an error of law in ruling that defendant's discharge of plaintiff constituted discrimination under the ADA and the HCRA. We hold that plaintiff failed to establish a prima facie case of discrimination under the ADA or the HCRA because her homicidal ideation left her unqualified for employment with defendant and because defendant did not discharge her because of her disability. . . . Our review of the current state of the law on this issue supports defendant's argument that a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee's disability."). Inasmuch as the School Board seeks to dismiss Respondent from her position as a teacher, not because of her mental health problems, but rather because of her notorious criminal conduct and its adverse impact on her ability to effectively discharge her teaching duties, the taking of such disciplinary action against her would violate neither the ADA ,FCRA, nor Article I, Section 2, of the Florida Constitution.30
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board.
DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Florida.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998.
ENDNOTES
1 Annual evaluations cover 16 separate areas. A teacher receives an overall rating of unsatisfactory, if concerns are noted in more than four of these areas.
2 Dr. Ellinger noted on the form that area 14 ("Supervise or manage others") was "NA" (not applicable).
3 According to Rule 6B-4.009(1)(b), Florida Administrative Code, a teacher does not have the capacity to teach if the teacher suffers from a "lack of emotional stability."
4 As noted above, Dr. Ellinger has more recently diagnosed Respondent as suffering from more serious mental health problems than those described in the affidavit.
5 Dr. Yetz's prescribing medication for Respondent, however, did not prevent Respondent from committing the criminal acts for which the School Board seeks to dismiss her.
6 The greater weight of the evidence adduced at the final hearing in this case establishes that, given her current diagnosis, it is in fact likely, not unlikely, that she will engage in similar conduct in the future.
7 Respondent, however, did not "follow up on" Dr. Ellinger's recommendations concerning her dealings with Joe.
8 At the final hearing in this case, which was held in mid- November of 1997, after the beginning of the 1997-1998 school year, Respondent testified that she "could not walk into a classroom tomorrow" and that she felt she "needed some time to
put this behind [her]" before she would be able to return to the classroom.
9 Such "reasonable school rules and regulations" include those which prohibit unit members from engaging in "misconduct in office" and "immorality," as those terms are defined in Rule 6B- 4.009, Florida Administrative Code.
10 Section 231.36(1)(a), Florida Statutes, provides that "[j]ust cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." Although not specifically mentioned in Section 231.36(1)(a), Florida Statutes, "immorality" also constitutes "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes. See Dietz v. Lee County School Board, 647 So. 2d 217, 218 (Fla. 2d DCA 1994)(Blue, J., concurring)("Just cause therefore includes but is not limited to five of the seven deadly sins [referenced in Section 231.36(4)(c), Florida Statutes, which concerns the suspension and dismissal of teachers under continuing contract]. We assume that drunkenness and immorality, which are not included in the non- exclusive list of sins constituting just cause, would also be grounds for dismissal.").
11 Pursuant to Fla. R. Crim. P. 3.172(d), a defendant may enter a guilty plea without admitting guilt, where the defendant "acknowledges that he or she feels the plea to be in his or her best interest."
12 "Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
13 There is no language in Section 231.36, Florida Statutes, prohibiting a district school board from entering into such an agreement with the collective bargaining representative of its instructional employees.
14 The collective bargaining agreement to which the administrative law judge in Auerbach was referring is the very same collective bargaining agreement that is involved in the instant case.
15 Even though these were "crimes involving moral turpitude" and Respondent was charged with and pled guilty to (in Palm Beach County Circuit Court Case No. 96-13985CFA02) having committed these crimes, Respondent is not guilty of, and therefore may not be disciplined for, having sustained a "conviction of a crime involving moral turpitude" inasmuch as she has never been adjudicated guilty of any of these crimes.
16 Contrary to the argument advanced by Respondent in her proposed recommended order, the School Board was not required, in order to establish Respondent's "immorality," to present "expert testimony as to the 'standards of public conscience and morals' in the community." "Any reasonable person should know that the act[s] performed by [Respondent] w[ere] immoral" (that is, inconsistent with such standards). Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975); see also Kinniry v. Abington School District, 673 A. 2d 429 (Pa. Commw. Ct. 1996)("Here, Kinniry contends that the District did not present evidence that his conduct offended the morals of the community or was a bad example to the children in the district. On the contrary, Kinniry claims that the District failed to produce any evidence regarding the community moral standard. Kinniry also asserts that the testimony of the thirty-one supporting character witnesses establishes that the morals of the community were not offended, and that he would not be a bad role model for students. The District, on the other hand, while not contesting Kinniry's past effectiveness as a teacher, asserts that the federal offenses to which Kinniry pled guilty are per se offensive and, as federal crimes, offend the morals of every community in the nation. We agree with the District.").
17 That Respondent, at the time she engaged in such conduct, was suffering from mental health problems that made it more difficult to control her emotions and exercise restraint does not compel a contrary conclusion. Cf. Morgan v. State, 639 So. 2d 6, 12 (Fla. 1994)("On review, we find that the instruction is a correct statement of the law and was proper. The defense experts focused on Morgan's explosive rage in committing the crime, and the jurors needed to understand that loss of control due to an emotional impulse or explosion is not a recognized defense in Florida."); Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977)("We decline to adopt the so-called 'irresistible impulse' portion of the ALI test which excuses from criminal responsibility the defendant who 'lacks substantial capacity . . . to conform his conduct to the requirement of the law.'"); Witt v. State,
342 So. 2d 497, 500 (Fla. 1977)("We reject the 'irresistible
impulse' doctrine asserted by the appellant."); Fla. Std. Jury Instr. (Crim.) 3.04(b)("Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person be overcome by passion or temper.").
18 The undersigned, in determining what disciplinary action should be taken against Respondent, has taken into consideration, as a mitigating factor, that she was suffering from mental health problems at the time she engaged in such "misconduct in office" and immorality." He has also considered that Respondent believed that she was being harassed and victimized by Joe. In the opinion of the undersigned, however, the factors militating in
favor of dismissal outweigh those militating in favor of the imposition of a less severe sanction.
19 Respondent's actions, however, did not constitute a violation of the School Board's Administrative Directive 3.27 inasmuch as this administrative directive applies only to "probationary/interim employees," not to teachers, like Respondent, holding a professional service contract; nor, as noted above, is Respondent guilty of having sustained a "conviction of a crime involving moral turpitude."
20 The School Board is a "covered entity," within the meaning of this statutory provision. See 42 U.S.C. Section 12111(2).
21 A " qualified individual with a disability," as used in 42
Section 12112, is defined in 42 U.S.C. Section 12111(8) as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." A "disability," as used in the ADA, is defined in 42 U.S.C. Section 12102(2) as follows:
The term "disability" means, with respect to an individual--
a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
a record of such an impairment; or
being regarded as having such an impairment.
22 According to 42 U.S.C. Section 12111(9), such "reasonable accommodations" may include:
making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
23 "Undue hardship," as used in 42 U.S.C. Section 12112, is defined in 42 U.S.C. 12111(10) as follows:
In general
The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).
Factors to be considered
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--
the nature and cost of the accommodation needed under this chapter;
the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
24 "The [FCRA] should be construed in conformity with the Rehabilitation Act, 29 U.S.C. Section 701 et seq., and the Americans With Disabilities Act, 42 U.S.C. Section 12101 et seq., and related regulations." Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).
25 Respondent's reliance upon Article I, Section 2, of the Florida Constitution is misplaced for the additional reason that her disability is mental or emotional, not physical, in nature. Article I, Section 2, of the Florida Constitution prohibits discrimination based upon a "physical handicap," which is not the same as a mental or emotional handicap. See Florida Birth Related Neurological Injury Compensation Association v. Division of Administrative Hearings, 686 So. 2d 1349 n.2 (Fla. 1997); American National Insurance Company v. Fair Employment and Housing Commission, 651 P. 2d 1151, 1154 (Cal. 1982); People v. Hanserd, 545 N.E. 2d 1037, 1040 (Ill. App. Ct. 1989); Whitlow v. Kentucky Manufacturing Company, 762 S.W. 2d 808, 809 (Ky. Ct. App. 1988).
26 In the instant case, there is no indication that, prior to her misconduct, Respondent requested any accommodation from the School Board concerning her mental health problems that the School Board refused to provide her.
27 "Courts have considered cases decided under the Rehabilitation Act to be persuasive authority for interpreting the ADA." The Florida Bar v. Clement,. 662 So. 2d 690, 699 (Fla. 1995).
28 In the instant case, Respondent contends that, under the ADA, the School Board was required to grant her request (made just before the School Board was to act on the Superintendent of School's recommendation that disciplinary action be taken against her) that she be given, as an accommodation for her mental health problems, "a leave of absence until the beginning of the 1997- 1998 school year so that she could be treated for her problems and undergo testing to ensure that her problems have been resolved." The request, however, came too late inasmuch as Respondent had already engaged in the criminal conduct for which the School Board seeks to dismiss her and the leave of absence Respondent requested would not have erased such conduct.
29 Another case which supports the proposition that "an employer 'relies' on a handicap when it justifies termination based on conduct caused by the handicap" is Hindman v GTE Data Services, Inc., 1994 WL 371396 (United States District Court, M.D. Fla. June 24, 1994), a case Respondent cites in her proposed recommended order. The undersigned, however, like the Ninth Circuit in Newland, finds the majority view on the matter to represent the better approach.
30 Respondent's criminal conduct aside, it is questionable whether, in light of her mental health problems, Respondent possesses the necessary qualifications to be a teacher and therefore is protected against discharge based upon these problems. See Rule 6B-4.009(1)(b), Florida Administrative Code ("incapacity" includes "lack of emotional instability"). The School Board, however, is not seeking to dismiss Respondent based
upon her "lack of emotional stability" and it thus is unnecessary to determine whether such action would be lawful.
COPIES FURNISHED:
Virginia Tanner-Otts, Esquire
School District of Palm Beach County Office of the General Counsel
3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813
Thomas L. Johnson, Esquire
Law Offices of John J. Chamblee, Jr.
202 West Cardy Street Tampa, Florida 33606
Dr. Joan P. Kowal Superintendent of Schools
School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5813
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 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.
1 Annual evaluations cover 16 separate areas. A teacher receives an overall rating of unsatisfactory, if concerns are noted in more than four of these areas.
2 Dr. Ellinger noted on the form that area 14 ("Supervise or manage others") was "NA" (not applicable).
3 According to Rule 6B-4.009(1)(b), Florida Administrative Code, a teacher does not have the capacity to teach if the teacher suffers from a "lack of emotional stability."
4 As noted above, Dr. Ellinger has more recently diagnosed Respondent as suffering from more serious mental health problems than those described in the affidavit.
5 Dr. Yetz's prescribing medication for Respondent, however, did not prevent Respondent from committing the criminal acts for which the School Board seeks to dismiss her.
6 The greater weight of the evidence adduced at the final hearing in this case establishes that, given her current diagnosis, it is
in fact likely, not unlikely, that she will engage in similar conduct in the future.
7 Respondent, however, did not "follow up on" Dr. Ellinger's recommendations concerning her dealings with Joe.
8 At the final hearing in this case, which was held in mid- November of 1997, after the beginning of the 1997-1998 school year, Respondent testified that she "could not walk into a classroom tomorrow" and that she felt she "needed some time to put this behind [her]" before she would be able to return to the classroom.
9 Such "reasonable school rules and regulations" include those which prohibit unit members from engaging in "misconduct in office" and "immorality," as those terms are defined in Rule 6B- 4.009, Florida Administrative Code.
10 Section 231.36(1)(a), Florida Statutes, provides that "[j]ust cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." Although not specifically mentioned in Section 231.36(1)(a), Florida Statutes, "immorality" also constitutes "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes. See Dietz v. Lee County School Board, 647 So. 2d 217, 218 (Fla. 2d DCA 1994)(Blue, J., concurring)("Just cause therefore includes but is not limited to five of the seven deadly sins [referenced in Section 231.36(4)(c), Florida Statutes, which concerns the suspension and dismissal of teachers under continuing contract]. We assume that drunkenness and immorality, which are not included in the non- exclusive list of sins constituting just cause, would also be grounds for dismissal.").
11 Pursuant to Fla. R. Crim. P. 3.172(d), a defendant may enter a guilty plea without admitting guilt, where the defendant "acknowledges that he or she feels the plea to be in his or her best interest."
12 "Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
13 There is no language in Section 231.36, Florida Statutes, prohibiting a district school board from entering into such an agreement with the collective bargaining representative of its instructional employees.
14 The collective bargaining agreement to which the administrative law judge in Auerbach was referring is the very same collective bargaining agreement that is involved in the instant case.
15 Even though these were "crimes involving moral turpitude" and Respondent was charged with and pled guilty to (in Palm Beach County Circuit Court Case No. 96-13985CFA02) having committed these crimes, Respondent is not guilty of, and therefore may not be disciplined for, having sustained a "conviction of a crime involving moral turpitude" inasmuch as she has never been adjudicated guilty of any of these crimes.
16 Contrary to the argument advanced by Respondent in her proposed recommended order, the School Board was not required, in order to establish Respondent's "immorality," to present "expert testimony as to the 'standards of public conscience and morals' in the community." "Any reasonable person should know that the act[s] performed by [Respondent] w[ere] immoral" (that is, inconsistent with such standards). Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975); see also Kinniry v. Abington School District, 673 A. 2d 429 (Pa. Commw. Ct. 1996)("Here, Kinniry contends that the District did not present evidence that his conduct offended the morals of the community or was a bad example to the children in the district. On the contrary, Kinniry claims that the District failed to produce any evidence regarding the community moral standard. Kinniry also asserts that the testimony of the thirty-one supporting character witnesses establishes that the morals of the community were not offended, and that he would not be a bad role model for students. The District, on the other hand, while not contesting Kinniry's past effectiveness as a teacher, asserts that the federal offenses to which Kinniry pled guilty are per se offensive and, as federal crimes, offend the morals of every community in the nation. We agree with the District.").
17 That Respondent, at the time she engaged in such conduct, was suffering from mental health problems that made it more difficult to control her emotions and exercise restraint does not compel a contrary conclusion. Cf. Morgan v. State, 639 So. 2d 6, 12 (Fla. 1994)("On review, we find that the instruction is a correct statement of the law and was proper. The defense experts focused on Morgan's explosive rage in committing the crime, and the jurors needed to understand that loss of control due to an emotional impulse or explosion is not a recognized defense in Florida."); Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977)("We decline to adopt the so-called 'irresistible impulse' portion of the ALI test which excuses from criminal responsibility the defendant who 'lacks substantial capacity . . . to conform his conduct to the requirement of the law.'"); Witt v. State,
342 So. 2d 497, 500 (Fla. 1977)("We reject the 'irresistible
impulse' doctrine asserted by the appellant."); Fla. Std. Jury
Instr. (Crim.) 3.04(b)("Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person be overcome by passion or temper.").
18 The undersigned, in determining what disciplinary action should be taken against Respondent, has taken into consideration, as a mitigating factor, that she was suffering from mental health problems at the time she engaged in such "misconduct in office" and immorality." He has also considered that Respondent believed that she was being harassed and victimized by Joe. In the opinion of the undersigned, however, the factors militating in favor of dismissal outweigh those militating in favor of the imposition of a less severe sanction.
19 Respondent's actions, however, did not constitute a violation of the School Board's Administrative Directive 3.27 inasmuch as this administrative directive applies only to "probationary/interim employees," not to teachers, like Respondent, holding a professional service contract; nor, as noted above, is Respondent guilty of having sustained a "conviction of a crime involving moral turpitude."
20 The School Board is a "covered entity," within the meaning of this statutory provision. See 42 U.S.C. Section 12111(2).
21 A " qualified individual with a disability," as used in 42
Section 12112, is defined in 42 U.S.C. Section 12111(8) as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." A "disability," as used in the ADA, is defined in 42 U.S.C. Section 12102(2) as follows:
The term "disability" means, with respect to an individual--
a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
a record of such an impairment; or
being regarded as having such an impairment.
22 According to 42 U.S.C. Section 12111(9), such "reasonable accommodations" may include:
making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
23 "Undue hardship," as used in 42 U.S.C. Section 12112, is defined in 42 U.S.C. 12111(10) as follows:
In general
The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).
Factors to be considered
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--
the nature and cost of the accommodation needed under this chapter;
the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
24 "The [FCRA] should be construed in conformity with the Rehabilitation Act, 29 U.S.C. Section 701 et seq., and the Americans With Disabilities Act, 42 U.S.C. Section 12101 et seq., and related regulations." Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).
25 Respondent's reliance upon Article I, Section 2, of the Florida Constitution is misplaced for the additional reason that her disability is mental or emotional, not physical, in nature. Article I, Section 2, of the Florida Constitution prohibits discrimination based upon a "physical handicap," which is not the same as a mental or emotional handicap. See Florida Birth Related Neurological Injury Compensation Association v. Division of Administrative Hearings, 686 So. 2d 1349 n.2 (Fla. 1997); American National Insurance Company v. Fair Employment and Housing Commission, 651 P. 2d 1151, 1154 (Cal. 1982); People v. Hanserd, 545 N.E. 2d 1037, 1040 (Ill. App. Ct. 1989); Whitlow v. Kentucky Manufacturing Company, 762 S.W. 2d 808, 809 (Ky. Ct. App. 1988).
26 In the instant case, there is no indication that, prior to her misconduct, Respondent requested any accommodation from the School Board concerning her mental health problems that the School Board refused to provide her.
27 "Courts have considered cases decided under the Rehabilitation Act to be persuasive authority for interpreting the ADA." The Florida Bar v. Clement,. 662 So. 2d 690, 699 (Fla. 1995).
28 In the instant case, Respondent contends that, under the ADA, the School Board was required to grant her request (made just before the School Board was to act on the Superintendent of School's recommendation that disciplinary action be taken against her) that she be given, as an accommodation for her mental health problems, "a leave of absence until the beginning of the 1997- 1998 school year so that she could be treated for her problems and undergo testing to ensure that her problems have been resolved." The request, however, came too late inasmuch as Respondent had already engaged in the criminal conduct for which the School Board seeks to dismiss her and the leave of absence Respondent requested would not have erased such conduct.
29 Another case which supports the proposition that "an employer 'relies' on a handicap when it justifies termination based on conduct caused by the handicap" is Hindman v GTE Data Services, Inc., 1994 WL 371396 (United States District Court, M.D. Fla. June 24, 1994), a case Respondent cites in her proposed recommended order. The undersigned, however, like the Ninth Circuit in Newland, finds the majority view on the matter to represent the better approach.
30 Respondent's criminal conduct aside, it is questionable whether, in light of her mental health problems, Respondent possesses the necessary qualifications to be a teacher and therefore is protected against discharge based upon these problems. See Rule 6B-4.009(1)(b), Florida Administrative Code ("incapacity" includes "lack of emotional instability"). The School Board, however, is not seeking to dismiss Respondent based upon her "lack of emotional stability" and it thus is unnecessary to determine whether such action would be lawful.
| Issue Date | Proceedings |
|---|---|
| Apr. 10, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 11/17-18/97. |
| Mar. 30, 1998 | Respondent`s Proposed Findings of Fact, Conclusions of Law Recommended Order filed. |
| Mar. 27, 1998 | Petitioner`s Proposed Findings of Fact, Conclusions of Law; List of Cited Cases (1 Binder/tagged) filed. |
| Mar. 26, 1998 | Petitioner`s Proposed Findings of Fact, Conclusions of Law filed. |
| Mar. 17, 1998 | Order Granting Extension of Time sent out. (PRO`s due by 3/30/98) |
| Mar. 16, 1998 | (Respondent) Motion for Extension of Time to File Recommended Order (filed via facsimile). |
| Mar. 16, 1998 | (Respondent) Motion for Extension of Time to File Recommended Order (filed via facsimile). |
| Feb. 18, 1998 | Order Granting Extension of Time sent out. (PRO`s due by 3/20/98) |
| Jan. 08, 1998 | (3 Volumes) Transcript of Proceedings filed. |
| Nov. 25, 1997 | Exhibits #18, & #19 filed. |
| Nov. 18, 1997 | Deposition of Helene Sanango Taken at the Instance of the Petitioner filed. |
| Nov. 17, 1997 | Video Hearing Held; see case file for applicable time frames. |
| Nov. 17, 1997 | cc: Deposition of Debora Woessner ; Exhibit 39 filed. |
| Nov. 13, 1997 | Order sent out. (re: response to motion in limine) |
| Nov. 13, 1997 | Notice of Taking Depositions filed. |
| Nov. 13, 1997 | Motion in Limine (Respondent) with cover letter filed. |
| Nov. 12, 1997 | Answer and Affirmative Defenses (Respondent) (filed via facsimile). |
| Nov. 12, 1997 | Counsel`s Prehearing Stipulation (filed via facsimile). |
| Nov. 10, 1997 | (Petitioner) Notice of Filing Exhibits filed. |
| Nov. 07, 1997 | Respondent`s Exhibits ; cc: Deposition of Linda B. Hardy ; cc: Deposition of Wilfred Paul Lachance filed. |
| Nov. 03, 1997 | (From V. Tanner-Otts) Notice of Appearance and Substitution of Counsel; Notice of Supplementing Petitioner`s Discovery filed. |
| Aug. 20, 1997 | Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for Nov. 17-18, 1997; 9:15am; West Palm Beach & Tallahassee) |
| Aug. 20, 1997 | (Petitioner) Administrative Complaint (filed via facsimile). |
| Jul. 09, 1997 | Notice of Hearing sent out. (hearing set for Nov. 18-19, 1997; 9:30am; West Palm Beach) |
| Jul. 09, 1997 | Order Requiring Prehearing Stipulation sent out. |
| Jun. 30, 1997 | Joint Response to Initial Order (filed via facsimile). |
| Jun. 09, 1997 | Initial Order issued. |
| Jun. 02, 1997 | Agency Action Letter; Request for Hearing, Letter Form (filed via facsimile). |
| May 09, 1997 | Agency Referral Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 10, 1998 | Recommended Order | Mentally disabled teacher should be dismissed based on her disability-related criminal conduct; dismissal not barred by anti-discrimination laws. |
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION vs DOREEN WHITFIELD, 97-002582 (1997)
ST. LUCIE COUNTY SCHOOL BOARD vs RANDOLPH LOCKRIDGE, 97-002582 (1997)
LEE COUNTY SCHOOL BOARD vs CHRISTEL FREEMAN, 97-002582 (1997)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs RICHARD V. POWELL, 97-002582 (1997)
