vs. )
Respondent. )
Case No. 00-4556PL
Pursuant to notice, a formal hearing was held in this case in West Palm Beach, Florida, on January 16-17, 2001, before Florence Snyder Rivas, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Glen J. Torcivia, Esquire
Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Whether the Respondent's termination of employment as a guidance counselor should be upheld.
In his Administrative Complaint dated November 7, 2000, Palm Beach County Superintendent of Schools, Dr. H. Benjamin Marlin, acting on behalf of the Palm Beach County School Board (School Board) notified Respondent Leslie O'Connor (O'Connor), a guidance counselor at Orchard View Elementary School (Orchard View), that her employment contract was terminated effective November 9, 2000.
O'Connor timely asserted her statutory and contractual rights to contest the termination, requesting a formal hearing before the Division of Administrative Hearings ("Division").
At final hearing, the School Board presented the testimony of Dr. Gregory Brigman (professor at Florida Atlantic University in the Counselor Education Department); Dr. Jeanne Burdsall (former guidance counselor and currently Manager of Professional Standards for the School Board); Susan Atherley (Assistant Principal, Lighthouse Elementary); Sandra Cunningham (Department of Student Services); Dr. Ann Lynch (professor at Florida Atlantic University in the Counselor Education Department); Emily Sloan (Assistant Principal for Exceptional Student Education, Lincoln Elementary); Linda Nelson (current Orchard View principal); Debra Johnson (former Orchard View principal), and Ronald Armstrong (Guidance Specialist).
The School Board's Exhibits 1-118 were received into evidence without objection.
O'Connor presented the testimony of former colleagues Charlotte Lewis and Melvin Church, and testified in her own behalf.
Respondent's composite Exhibits 1 and 2 were admitted into evidence without objection.
The Transcript of the formal hearing was filed with the Division on March 19, 2001. A timely joint motion to enlarge the time for the filing of proposed recommended orders was filed, and an enlargement of time was granted through April 10, 2001. The parties' proposed recommended orders were timely submitted and have been carefully considered in the preparation of this Recommended Order.
O'Connor is a long-term employee of the School Board.
She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of
her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week."
Up until 1997, O'Connor enjoyed a professional period
she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations.
The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career.
Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies."
The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board.
The 1997-98 School Year
On March 2, 1998, O'Connor was appropriately
reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired.
On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies."
On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal.
O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998.
The 1998-1999 School Year
Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester.
O'Connor maintains that her medical difficulties,
which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary.
During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor.
Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors.
In January 1999, O'Connor returned to Orchard View.
She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions.
The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal.
On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson.
Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of
rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern.
Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses.
Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them.
O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof."
O'Connor would abruptly move from one discussion to
another, making it impossible for the children to receive effective guidance counseling.
On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary".
The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999.
Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system."
This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999.
Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies.
On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of
counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification."
O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop.
However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills."
In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling.
Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague.
On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children.
Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared.
O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance.
O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help.
The 1999-2000 School Year
On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided.
On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future.
On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan.
In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies.
Employees subject to a 90-day plan have a right to request to be reassigned to another school.
O'Connor timely exercised this right, but the request was denied by the School Board.
In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns."
Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class.
Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling.
O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail.
On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms.
In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level.
Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do
it."
Also on that day, Lynch observed O'Connor ask a
teacher to see a child she had been counseling. The child came
out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway.
On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session.
On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students.
On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss
confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information.
Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out.
On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling.
A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said
"Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling.
On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct.
All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor.
O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement.
By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination.
Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which
O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies.
During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation.
For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance.
The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and
Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations.
At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended.
The 2000-2001 School Year
On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997.
O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately.
In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability.
On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files."
On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated.
Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective
November 9, 2000.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this matter pursuant to the Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and Palm Beach County Classroom Teachers Association and Sections 120.57(1) and 231.29 of the Florida Statutes (2000).
Section 231.29, Florida Statutes, establishes a process for the evaluation of instructional personnel, including
guidance counselors, and requires that an employee who is performing unsatisfactorily be placed on a 90-day probation. If the employee fails to correct deficiencies within that probationary period, termination of employment is appropriate.
Because the School Board seeks to dismiss O'Connor from her employment, it has the burden of proving its allegations by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).
The School Board proved, by a preponderance of the evidence, compliance with all material elements of Section 231.29, Florida Statutes.
As a matter of law, the assistance provided was reasonable and entirely appropriate to O'Connor's documented deficiencies. The governing statute and the union contract require the School Board, through administrators at the school and school and district level to offer a deficient guidance counselor assistance, and the evidence establishes that O'Connor received ample assistance from well qualified individuals.
O'Connor was afforded a full and fair opportunity to cross-examine the School Board's witnesses with regard to their testimony about their observations, as well as about her theory that a conspiracy against her was organized at Johnson's behest, and that the assistance plans were shams to generate a paper trail in support of a foregone conclusion. While the
undersigned concludes that Johnson was less than forthcoming about her opinion of O'Connor, neither cross-examination of School Board witnesses, nor O'Connor's case-in-chief, brought forward any evidence that the evaluations conducted by Johnson and others were anything other than an accurate portrayal of what was observed.
O'Connor offered no evidence which would impeach the bona fides of the process by which she was terminated. She did not challenge the credentials of the personnel who conducted the observations, and offered no evidence to support the theory that there was a conspiracy against her. Although O'Connor believes that her termination was a foregone conclusion, she did not deny the specific incidents cited in numerous observations made by numerous observers, and she offered no evidence which would support a finding that the incidents recounted in the observations did not warrant the observers' findings that her performance was unsatisfactory. Neither was there any testimony which would support a finding that the assistance offered to O'Connor was provided in bad faith, or was a sham.
O'Connor insists that she was doing her job exactly as she had always done it during the decade in which she had received satisfactory evaluations.
Be that as it may, inherent in the union contract and statutory scheme which governs these proceedings is the notion
that educators do not enjoy tenure, or a lifetime appointment. Rather, each and every teacher and guidance counselor must prove himself each and every year under the standards then lawfully in place.
The School Board admits that O'Connor is fundamentally sincere and does some things, on some occasions, in a manner consistent with what is expected of a guidance counselor.
Undoubtedly there is a terrible sadness to being told, after 15 years in the same work environment, that one's services are no longer required.
But behind the statutory scheme is the strong public policy that guidance counselors, because of the sensitive nature of their work, must operate at a consistently high level. O'Connor, for whatever reason, is currently unable to do so.
The School Board's unexplained refusal to honor O'Connor's requests for a transfer to another school somewhat undercuts its claim that it did everything in its power to save this long-term employee. In fact, it lends credence to O'Connor's opinion that the School Board was just as happy to lose an employee with expensive medical needs. But the Board was not under legal obligation to provide a transfer, only to consider the request. The failure to honor O'Connor's transfer requests does not, standing alone, support the theory that O'Connor was unlawfully terminated.
No authority is cited by O'Connor for the proposition that Johnson's personal animus toward her, if proven, which it was not, would constitute a defense to termination when, as in this case, the substantive and procedural requirements have otherwise been fulfilled.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000.
DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001.
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205
Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
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.
