STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2752

)

BRENDA ARMSTRONG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 24, 2000, in Tavares, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

McLin, Burnsed, Morrison, Johnson, Newman & Roy

Post Office Box 491357 Leesburg, Florida 34749-1357

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.

PRELIMINARY STATEMENT

This matter began on May 10, 2000, when Petitioner, Lake County School Board, issued a letter advising Respondent, Brenda

Armstead, an instructional employee, that it had "voted to terminate [her] employment with the Lake County School Board pending termination procedures." Thereafter, by letter dated May 26, 2000, Respondent requested a hearing to contest the action.

The matter was referred by Petitioner to the Division of Administrative Hearings on July 3, 2000, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. Because the matter was required to be heard within sixty days after Respondent's request for a hearing, by Notice of Hearing dated July 13, 2000, a final hearing was scheduled on July 24, 2000, in Tavares, Florida.

At the final hearing, Petitioner presented the testimony of Lori B. Marshall, a teacher at Lake Hills School; Jerry W. Cox, assistant superintendent for business and support; and David Coggshall, supervisor of the MIS Copy Center. Also, it offered Petitioner's Exhibits 1 and 2, which were were received in evidence. Although given both telephonic notice and a timely Notice of Hearing, Respondent did not appear.

There is no transcript of the hearing. Petitioner waived its right to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal."

2. In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught

   3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom.

3. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom.

4. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant

   Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children.

5. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000.

6. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent.

7. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave.

8. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).

10. As the party seeking to terminate Respondent from employment, Petitioner has the burden of proving by a preponderance of the evidence that the allegations in the charging document are true. Allen v. School Bd. of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

11. This proceeding is governed by Section 231.36(6), Florida Statutes (1999), which provides that "[a]ny member of the

    instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a)." The term "just 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," as those terms are defined by the State Board of Education in Chapter 6B-4, Florida Administrative Code.

12. Respondent's termination is based on the allegation that she is guilty of gross insubordination and being willfully absent without leave. Gross insubordination or willful neglect of duties is defined in Rule 6B-4.009(4), Florida Administrative Code, as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Being willfully absent without leave is self- explanatory and constitutes a violation of Board Policy 6.511.

13. By a preponderance of the evidence, Petitioner has established that the charges in the termination letter are true. More specifically, Respondent evinced a continuing intentional refusal to obey at least four direct orders to report to her temporary assignment at the Copy Center; such orders were reasonable in nature; and they were given by and with proper authority. This being so, she is guilty of gross subordination within the meaning of the rule. See Smith v. School Bd. of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981)(actions of

employee must be "constant or continuing" to meet definition within rule). In addition, the evidence shows that Respondent has violated Policy 6.511 by being willfully absent without leave from February 2000 until her termination in May 2000. There is, then, sufficient just cause to terminate her employment.

RECOMMENDATION

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

RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause.

DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000.

COPIES FURNISHED:

Dr. R. Jerry Smith, Superintendent Lake County School Board

201 West Burleigh Boulevard Tavares, Florida 32778-2496

Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson,

Newman & Roy, P.A. Post Office Box 491357

Leesburg, Florida 34749-1357

Brenda Armstead

32412 Crystal Breeze Lane Leesburg, Florida 34788

Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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.

Docket for Case No: 00-002752

Orders for Case No: 00-002752