STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 08-4490 |
CLINTON BLACK, | ) ) | |||
Respondent. | ) | |||
) |
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted on December 3, 2008, by video teleconference between Tallahassee and Fort Lauderdale, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Eugene K. Pettis, Esquire
Debra Potter Klauber, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
Fort Lauderdale, Florida 33301
For Respondent: Mark Herdman, Esquire
Herdman & Sakellarides, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33605
STATEMENT OF THE ISSUE
Whether Petitioner has just cause to terminate Respondent’s employment based on the determination by a licensed psychologist that Respondent was not fit to perform his duties as a classroom
teacher.
PRELIMINARY STATEMENT
Prior to December 9, 2004, Petitioner required Respondent to go through the fitness evaluation process pursuant to School Board Policy 4004 (Policy 4004). After the first evaluation process, Respondent was returned to duty.
On December 9, 2004, Petitioner required Respondent to submit to the fitness evaluation process for the second time. Dr. Forman, the psychologist who performed the initial evaluation, determined that Respondent was unfit for duty. On March 7, 2005, Petitioner placed Respondent on administrative leave without pay until further evaluations were completed.
After separate evaluations by two other psychologists, Respondent returned to Dr. Forman on May 12, 2005, for his reevaluation. Dr. Forman determined on the reevaluation that Respondent was unfit for duty. The Superintendent of Schools thereafter recommended that Respondent’s employment be terminated. At its regularly scheduled meeting in June of 2005, Petitioner took action to suspend Respondent’s employment
without pay and instituted proceedings to terminate his employment.
Respondent thereafter timely challenged Petitioner’s proposed action to terminate his employment. Respondent lodged complaints against Dr. Forman following his initial evaluation. Respondent asserts in this proceeding that he should not have been required to submit to Dr. Forman for his final reevaluation, which led to the recommendation to terminate Respondent’s employment.
On June 24, 2005, the matter was referred to DOAH and assigned DOAH Case No. 05-2304. On July 6, 2005, the matter was scheduled for formal hearing on September 6, 2005. On
August 18, 2005, Petitioner filed a motion for continuance based on a grievance proceeding filed by Respondent against Petitioner. On August 19, 2005, Respondent moved to have the proceeding abated pending the resolution of the grievance proceeding. On August 22, 2005, the presiding administrative law judge (Administrative Law Judge) entered an “Order Granting Continuance and Placing Case in Abeyance” (the Order). The Order required the parties to file a status report by
September 21, 2005. The Order advised that failure to timely comply with the requirement to file a status report could result in the closure of DOAH Case No. 05-2304. The parties failed to timely file the status report required by the Order. On
September 29, 2005, the presiding ALJ closed DOAH Case No. 05- 2304.
By letter dated April 14, 2008, Respondent’s counsel served a letter on the Petitioner’s counsel stating, in relevant part,
as follows:
For a number of months now we have
discussed the District returning Mr. Black to a teaching position. The District has been provided numerous reports from licensed psychiatrists and/or mental health counselors, all attesting to Mr. Black’s stability and fitness to return to duty. It was my understanding he was to have returned to his position months ago.
Please treat this letter as a final request for the District to place Mr. Black into a teaching position without the need for a formal administrative hearing. If the District is unwilling to return Mr. Black to his position in the immediate future, please forward this case to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and the conduct of a formal administrative hearing.
On September 15, 2008, Petitioner forwarded the matter to DOAH where it was reopened as DOAH Case No. 08-4490.
Petitioner’s transmittal letter included information that the previous matter had been “. . . placed in abeyance on August 22, 2005, while the Respondent continued with his formal grievance.
. . . “
The issue in this proceeding is whether Petitioner had just cause to terminate Respondent’s employment and, if not, the
relief (including back pay) to which Respondent is entitled. There is no issue as to Respondent’s present fitness for duty.
At the final hearing, Petitioner presented the testimony of Dr. Joseph Melita (Executive Director of Petitioner’s Professional Standards and Special Investigative Unit), Frances Bolden (Area Director for Petitioner’s North Central Area), Ronald Forsman (Principal of Rickards Middle School), the Respondent, Dr. Bruce Forman (a licensed psychologist),
Dr. Laura Hohnecker (a licensed psychologist), and Richard Mijon (Personnel Administrator V with Petitioner’s Office of Professional Standards). Petitioner’s Exhibits 1-53; and 56-57 were received into evidence. Petitioner did not offer Exhibits numbered 54 and 55. Respondent’s 27 sequentially-lettered Exhibits A-AA were received into evidence.
The parties filed an Amended Joint Pre-Hearing Stipulation on November 24, 2008, that contained Stipulated Facts in 34 sequentially-numbered paragraphs. Those Stipulated Facts have been incorporated into the Findings of Fact set forth below.
All of the schools referenced in this Recommended Order are public schools in Broward County, Florida.
A Transcript of the proceedings, consisting of two volumes, was filed on January 21, 2009. Each party filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida.
Petitioner has continuously employed Respondent since 1998 as a classroom teacher. At the times material to this proceeding, Respondent has held a professional services contract.
The School Board has adopted Policy 4004, which provides for mandatory physical and/or psychological examinations for employees, as follows:
AT ANY TIME DURING THE COURSE OF EMPLOYMENT WHEN IT SHALL BE DEEMED ADVISABLE BY THE SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE REQUIRED TO TAKE A PHYSICAL OR PSYCHOLOGICAL EXAMINATION.
RULES
The Board authorizes the Superintendent to establish procedures to carry out the intent of this policy.
The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Division of Personnel, Policies, Government and Community Relations.
Where the employee is found to be unable to function satisfactorily, the Division of Personnel, Policies, Government and Community Relations shall take appropriate action.
At all times relevant to this proceeding, the Superintendent of Schools had in effect the following procedures
(Policy 4004 procedures) relating to fitness for duty determinations:
Fit for Duty Determination Procedures
The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee.
SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home or at an alternate site with pay, depending on circumstances (i.e. active case file/investigation).
The affected employee shall select the name of a medical doctor psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 24 hours.
SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation.
Letter is sent to the doctor explaining billing instructions, and ‘Fit for Duty Evaluation’ report of findings.
The doctor as delineated in the policy will conduct Pre [sic] evaluation at District expense. Note: a 2nd Opinion will be at the employee’s expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. [Emphasis is in the orginal.]
Doctor determines if employee is ‘Fit for Duty’ or [is] not [fit] for duty.
Where the employee is found ‘unfit for duty’ the Executive Director of Professional Standards & Special Investigative Unit shall take appropriate action per the recommendation of the doctor, subjecting employee to a Post-evaluation by the same doctor making the initial evaluation. The Post-evaluation ought to occur within 90 days of the initial evaluation.
If a doctor determines that the employee is ‘Unfit for Duty’, an administrative reassignment letter is prepared changing the employee’s pay status to ‘at home without pay (PLV)’. The employee is given information to call the Leave Department to apply for any paid leave accrued, and/or any other leave types per SBBC Policies that they are eligible for. Also, a Formal Referral to EAP is prepared for follow-up.
Based on the progress and/or compliance with EAP’s recommendations, a Post Evaluation is scheduled within the 90- day reassessment period.
If employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination (School Board Agenda is prepared for the next Board Meeting). Note: 2nd Opinions on the Post evaluation will be at the employee’s expense, if requested. Third evaluation, if required will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.]
Employee and school/work site are notified of doctor’s fit for duty status via certified mail. (Note: Confidential Doctor’s report will only be distributed to the employee). The immediate supervisor is notified as well. However if the doctor has follow-up recommendations, then a Formal Referral to Employee Assistant Program (EAP) is prepared by SIU (i.e. mental health follow-up or other referrals as appropriate.
If employee is found Fit for Duty, a certified letter is sent to the employee
with instructions to return to work. The immediate supervisor is notified as well.
Respondent was employed as a science teacher at Piper High School (Piper High) from 1999 until September of 2003.
After two of Respondent’s students alleged in September 2003 that Respondent had battered them, Petitioner’s Professional Standards and Special Investigative Unit (SIU) conducted an investigation of the alleged incident.
Petitioner submitted the results of the investigation to a Probable Cause Committee, which, in March of 2004, found probable cause of battery. A Pre-Disciplinary Hearing was held on June 10, 2004. The Committee recommended that Respondent's employment be terminated.
Subsequently, in July of 2004, after his review of Respondent’s case, Dr. Frank Till (the Superintendent of Schools), recommended to the School Board that Respondent be reprimanded and returned to his teaching duties. The School Board followed Dr. Till’s recommendation. Respondent was notified of Petitioner’s action and the fact that he would be returned to the classroom by letter dated July 12, 2004. The letter was signed by Dr. Melita.
Respondent responded to the July 12, 2004, letter with a letter to Dr. Melita dated July 15, 2004 (Petitioner’s
Exhibit 8). This letter was copied to then President Bush, then
Governor Bush, then Commissioner of Education Horne, Dr. Till, members of the School Board, and others. The letter consisted of two paragraphs. The first paragraph, which inexplicably contains a complaint by Respondent that he was being returned to the classroom, is set forth below. The second paragraph is not reproduced here because it pertained to an alleged leak of the SIU report to a newspaper reporter. The entire letter should be read if there is a question as to the context of the statements.
Due to the fact that the students deliberately deceived in their irrefutably asinine assertion of battery, because they were failing Mr. Black’s science class, indeed, Mr. Black was wrongfully removed from his teacher position at Piper High School in the first place. It is fiercely urgent that you, Dr. Melita, and the School Board of Broward County, Florida, be aware that the students’ sickening battery hoax, which has been wantonly compounded by the draconian intimidating threat to terminate Mr. Black, has unfortunately caused
Mr. Black’s family and himself exceptionally grave pain and suffering. This horrific suffering Mr. Black has been unnecessarily forced to go through since October 3, 2003, has rendered him psychologically, emotionally, physically and professionally harmed. Mr. Black immutably practiced the highest professional and ethical standards in his committed teaching duties at Piper High. Now, it is egregiously unfair to negligently dump Mr. Black back in a teacher position after his character clearly has been irreparably defamed by the mendacious students and the unjust Professional Standards Committee.
Respondent’s correspondence caused Dr. Melita to be concerned as to Respondent’s emotional and mental stability.
Before the commencement of the next school year (2004- 2005), Petitioner transferred Respondent from Piper High to Boyd Anderson High School (Anderson High).
Respondent strenuously objected to the transfer.
The decision to transfer him was made by the appropriate area office, based on a determination that his return to Piper High might disrupt the instructional program. Respondent made his objections to the transfer known by writing letters to School Board supervisory level employees, and others.
Frances Bolden, the area director, communicated with Respondent about his transfer to Anderson High, and explained that she would meet him at the school to help him get acclimated.
On Tuesday, August 10, 2004, Respondent reported to Anderson High. He met with Principal Timothy Gadson and
Ms. Bolden twice on that day, with a faculty meeting intervening between the two meetings. Ms. Bolden described Respondent as being very anxious and nervous, despite the fact that it was a planning day before the school year commenced and no students were on campus that day.
Following their meetings with Respondent on August 10, 2004, Dr. Gadson and Ms. Bolden referred Mr. Black to SIU based
on the following statements he made:
He was not comfortable in teaching students;
He feared for the safety of the students;
He had a condition that prevented him from going in the classroom;
He had been out of the classroom since October 2003; and
If he were forced to go into the classroom, he would leave Boyd Anderson within one week.
He could not teach as he was under a doctor's care through EAP;
He could not be at this school;
His doctor told him that he could not work with students; and
He needed help.
Based on these concerns, Dr. Melita required Respondent to submit to a fitness for duty assessment pursuant to Policy 4004. Respondent was provided with a copy of the policy and procedures.1
On August 23, 2004, Respondent selected and met with Dr. Mendoza, who was on the School Board approved list.
Dr. Mendoza found that Respondent was not fit for duty at that time.
Respondent was formally referred to the Employee Assistance Program (EAP) and advised to follow up with
Dr. Mendoza within 90 days.
Respondent returned for a follow-up evaluation with Dr. Mendoza on November 10, 2004, after which Dr. Mendoza
recommended that he be returned to work "in low stress settings while continuing to receive therapeutic treatment."
Respondent was returned to work effective November 22, 2004, but Petitioner transferred Respondent from Anderson High to Rickards Middle School, in an attempt to comply with
Dr. Mendoza’s recommendation that he be placed in a low stress setting.2
Prior to December 8, 2004, the Florida Department of Education (DOE) started an investigation into the 2003 incident at Piper High. As a consequence of that investigation, Respondent hired certain college students who, along with Respondent and some others, reenacted Respondent’s version of the events that had led to the charges of battery. Respondent videotaped the reenactment and forwarded a copy of the videotape to the DOE investigator. The DOE investigator became concerned that Respondent may have violated the Principles of Professional Conduct for the Education Profession by using high school students as part of the reenactment.
On or before December 8, 2004, the DOE investigator made contact with Respondent. Respondent became distraught after that contact. On December 8, 2004, a school based administrator from Rickards Middle School contacted SIU because of concerns about Respondent.
Charles Rawls (a SIU supervisor) and Richard Mijon responded to Rickards Middle School and met with Respondent. Respondent admitted that he was concerned about a possible new investigation by DOE. Respondent stated that he was too upset to be at the school and too upset to be around children and he was sent home for the day.
The next day, December 9, 2004, Dr. Melita requested a second fitness for duty assessment pursuant to Policy 4004. Again, Petitioner provided Respondent a copy of the pertinent policy and procedures.
Of the School Board approved psychologists, Respondent chose Dr. Forman to provide his initial evaluation. On
December 15, 2004, Respondent met with Dr. Forman for the initial evaluation. Dr. Forman prepared a report (Petitioner Exhibit 32) which, together with his testimony at the formal hearing, detailed the manner in which he conducted the evaluation, the tests he administered, the reasons he selected the tests he utilized, the results of the tests, and his interpretation of his results. Dr. Forman found that Respondent was not fit for duty.
Respondent was again referred to the EAP and advised to follow up with Dr. Forman within 90 days. Respondent objected to Dr. Forman's initial evaluation because, Respondent alleged, Dr. Forman's behavior was inappropriate, and Respondent
asked for a new evaluation. Respondent’s objections were made both orally and in writing.
On December 15, 2004, Respondent wrote Mr. Mijon the following letter:
As instructed by you I did in fact promptly report to my 1:00 p.m. appointment with [Dr. Forman] for the purpose of submitting to a Fit For Duty Psychological Exam. However, I quickly became extremely uncomfortable with Dr. Forman’s deportment when he began articulating extremely graphic and indecent profanity during his evaluation session with me. Dr. Forman even questioned whether or not racism was a motivating factor in my circumstances for being ordered to take the Fit For Duty Psychological Exam. I specifically told Dr. Forman that I did not feel comfortable with his conversation and kindly asked him to please change the subject. Dr. Forman continued the besetting conversation for a while longer.
Considering Dr. Forman’s clearly inappropriate conduct unbecoming a psychologist, I understandably, feel highly uncomfortable entrusting the unwavering integrity and irrefutably unbiased interpretation of my Fit For Duty Psychological Exam results in Dr. Forman’s questionable care. Moreover, my vital employment wherewithal depends on the strict accuracy and reliability of the Fit For Duty Psychological Exam, which Dr. Forman administered with suspect. Naturally, due to the immensely inappropriate conditions in which I was unfairly subjected to take the required Fit For Duty Psychological Exam, which in and of it self [sic] in part of a terribly stressful 400-question test, I am certainly poised to vigorously challenge the exam results. As such, I respectfully request that you immediately abrogate Dr.
Forman’s exam results and allow me a fair opportunity to select a professional and
competent psychologist to properly administer the Fit For Duty Psychological Exam.
Pursuant to the School Board's Policy 4004, Respondent was entitled to seek a second opinion by being evaluated by a separate School Board approved psychologist of his choosing, but at Respondent’s expense. Respondent chose psychologist Steven Shiendling, Ph.D., for the second opinion.
Dr. Shiendling met with Respondent on March 14 and 15, 2005. His evaluation consisted of face-to-face interviews lasting a total of 2.5 hours. Dr. Shiendling did not administer any standardized testing in his evaluation. Dr. Shiendling found that Respondent was fit for duty.
In accordance with Policy 4004, Dr. Hohnecker was selected to provide the third evaluation of Respondent (with Dr. Forman and Dr. Shiendling having provided the first two evaluations) at Petitioner’s expense. This evaluation occurred April 1, 2005. Dr. Hohnecker’s thorough report (Petitioner’s Exhibit 36) and her testimony at the formal hearing established that Respondent was not fit for duty as of the date of the evaluation "by reason of inappropriate outbursts of anger and intense anxiety." As of April 1, 2005, Respondent was not fit for duty as a classroom teacher.
Dr. Hohnecker made recommendations that, if satisfied, would warrant Respondent’s return to work.
Dr. Hohnecker further recommended that Respondent not be returned to Piper High School, which Respondent still wanted to do, until the students involved in the September 2003 incident had graduated.
Respondent was, again, recommended to the Employee Assistance Program and advised to follow up with Dr. Forman.
On April 20, 2005, John P. Molinari, a psychotherapist who worked with Respondent through Petitioner’s EAP, sent the following letter to Michelle Moore of Petitioner’s EAP:
I met with Mr. Clinton Black today as part of our ongoing treatment. Mr. Black appears much less anxious with a high degree of motivation to return to work. In view of this, I recommend that Mr. Black return to Dr. Forman to be reevaluated for his fit for duty status.
Mr. Mijon advised Respondent to report to Dr. Forman on May 12, 2005, for his reevaluation. Respondent objected to returning to Dr. Forman. On April 28, 2005, Mr. Mijon informed Respondent that he would be guilty of insubordination if he did not keep the appointment with Dr. Forman. Dr. Forman was selected to provide the reevaluation pursuant to the Policy 4004 procedures.
Between Dr. Forman’s initial evaluation of Respondent and his reevaluation, Mr. Mijon told Dr. Forman that Respondent had lodged complaints about the manner in which the initial evaluation had been conducted. Mr. Mijon told Dr. Forman that
Respondent considered the initial evaluation to have been unprofessional and invalid. Mr. Mijon did not go into the specifics of Respondent’s complaints. Mr. Mijon had also told Dr. Melita about the complaints Respondent had as to
Dr. Forman’s initial evaluation.
At some undetermined point, Respondent lodged complaints against Dr. Forman with the American Psychological Association (APA) and the Florida Department of Health, Board of Psychology (DOH).
On May 4, 2005, Respondent hand delivered the following letter to Mr. Mijon with copies to Dr. Till, Dr. Melita, and Michelle Moore:
Due to the egregious harassment and verbal abuse Dr. Bruce Forman wrongfully inflicted upon me during my initial fit for duty session, I respectfully urge you to immediately rescind your intimidating treat [sic] to terminate me should I not report to Dr. Forman, due to my resulting genuine fear and discomfort, for the second appointment you have scheduled for me on May 12, 2005.
As I previously formally documented to you, Dr. Joe Melita, Mr. Charles Rawls and
Ms. Michelle Moore via letter, I factually suffered excruciating and debilitating harassment and verbal abuse while under the care of Dr. Bruce Forman during my initial fit for duty assessment on December 15, 2004. However, my authentic complaint was apparently inappropriately ignored.
Furthermore, due to the fact that I have appropriately filed two investigative complaints against Dr. Forman for the abject harassment and verbal abuse he inflicted upon me during my initial fit for duty exam,
it clearly would be overwhelmingly inappropriate for me to return to Dr. Forman for a second fit for duty assessment under these brutal circumstances Dr. Forman has inappropriately forced upon me. Naturally, I feel extremely afraid and uncomfortable returning to Dr. Forman for a second fit for duty assessment under his inappropriate care and thus would be incapable of relaxing and focusing for proper testing as I rightfully deserve and should have the fair and equal opportunity to do so during a valid fit for duty exam. Therefore, I unambiguously urge you to withdraw at once your intimidating treat [sic] to terminate me and cancel your scheduled May 12, 2005 appointment for me with Dr. Forman due to the exceptionally grave harassment and verbal abuse Dr. Forman wrongfully inflicted upon me.
Mr. Mijon ordered Respondent to be reevaluated by Dr. Forman because he believed that paragraph 12 of the Policy 4004 procedures provided no other option than to require Respondent to be re-evaluated by the same psychologist
(Dr. Forman) who performed the initial evaluation. Dr. Melita interprets paragraph 12 more liberally than Mr. Mijon.
Dr. Melita testified beginning at page 47 of Volume I of the Transcript as follows:
Q. Were you made aware that Mr. Mijon was sending Mr. Black back to see Dr. Forman for re-evaluation?
A. Yes. If I remember correctly, because I asked why, from what I understand it was that Mr. Black said it was okay.
Q. Now, did you understand that Mr. Black initially refused to go back to see
Dr. Forman? Were you made aware of that?
A. Yes.
Q. Were you aware that Mr. Mijon then told him that if he did not go back to see Dr. Forman that he would be terminated for insubordination?
A. That’s not what I was aware of, because I questioned why he was going back to Forman if there was an issue. According to what I believe to be what Mr. Mijon told me was that that was Mr. Black’s decision.
Q. So you think it was Mr. Black’s decision to go back to see Dr. Forman?
A. Yes, as odd as I thought it was.
Q. So if Mr. Black had, in fact, had some problem with Dr. Forman, from your perspective, he should have gone to see a different doctor other than Dr. Forman, correct?
A. Yes. If I remember correctly, my normal process is, Why would he go back to somebody who he has an issue with?
Mr. Mijon’s response, if I remember correctly, was that Mr. Black said he had no problems going back to Mr. Forman. That’s the best of recollection.
Q. So if Mr. Mijon, in fact, threatened Mr. Black with termination if he refused to go back to see Dr. Forman, that would not be consistent with your view of what should happen?
A. That’s absolutely correct. I would not like to see anybody threatened.
Dr. Forman was unaware of the complaints Respondent had lodged with the APA or the DOH until after Petitioner took action to terminate Respondent’s employment. Consequently, these complaints had no influence on the report Dr. Forman filed following his May 12, 2005, evaluation of the Respondent.3
Respondent agreed, under protest, to be reevaluated by Dr. Forman, but only on the condition that Dr. Forman would allow him to record the session. Dr. Forman agreed to have the
session recorded on the condition that Respondent would provide Petitioner with a copy of the taped session. Respondent agreed to that condition. Respondent recorded the reevaluation session of May 12, 2005. Despite numerous requests, no tape was ever provided. Respondent testified that the tape was destroyed during Hurricane Wilma, which, according to the National Hurricane website, hit South Florida in October 2005.
Dr. Forman testified at the hearing as to both the evaluation and the reevaluation. Reports as to his evaluation and his reevaluation were admitted into evidence. Dr. Forman again found that Respondent was not fit for duty on his reevaluation. The undersigned finds Dr. Forman’s testimony to be clear, professional, and persuasive. There was insufficient evidence to establish that the complaints Respondent lodged against Dr. Forman to Mr. Mijon had any bearing on Dr. Forman’s reevaluation. There was also insufficient evidence to establish that Dr. Forman should have been disqualified from providing the reevaluation. Dr. Forman’s Reevaluation Report (Petitioner’s Exhibit 43), provides, in relevant part, a recap of Dr. Forman’s findings as follows:
. . . As I expressed to you by phone,
Mr. Black appears to have deteriorated emotionally over the past five months and I am concerned that Mr. Black may be acutely psychotic. I can say unequivocally that Mr. Black is not ready to return to the classroom at this time. He was not fit to
return to teaching duties the first time I evaluated him and given that his current emotional state is worsened, he is less able to function in an instructional capacity. I also believe an effort should be made to get Mr. Black psychiatric care as I am concerned about his wellbeing. . . .
Petitioner established by a preponderance of the evidence that Respondent was not fit for duty as a classroom teacher as of May 12, 2005.
On June 10, 2005, Respondent was notified that he would be recommended for termination from employment based on the finding that he was not fit for duty as a teacher.
At its June 21, 2005 meeting, the School Board voted to terminate Respondent's employment pursuant to Policy 4004. The action to terminate Respondent’s employment was part of the consent agenda.4
In accordance with paragraph 12 of Policy 4004 procedures, Respondent could have requested a second opinion, following the reevaluation by Dr. Forman. Respondent did not request another evaluation. He no longer trusted the process, and stated that he could not obtain another evaluation for financial reasons. Subsequent to the School Board’s vote in June 2005, Respondent went off of the School Board approved list, looked in the yellow pages, and retained some other therapists, psychologists and/or psychiatrists to perform
evaluations. Those subsequent evaluations were not offered into evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).
Because Petitioner seeks to terminate Respondent’s employment and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in its Administrative Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
Policy 4004 and the applicable procedures specifically state, "if employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination.” Dr. Forman found Mr. Black was not fit for duty and the School Board followed its procedures appropriately. Petitioner has the authority to discharge a teacher who is unable to perform his or her duties. See § 1012.33(1)(a), Fla. Stat. (2005). The subsection has not been amended since 2005 and is still in effect.
Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment.
DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
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 3rd day of March, 2009.
ENDNOTES
1/ As will be discussed below, this was the first of two fit for duty procedures Petitioner required of Respondent. The first resulted in his return to the classroom. The second resulted in the recommendation for termination at issue in this proceeding.
The first process is discussed to provide a proper context for the decisions that were subsequently made.
2/ Prior to being informed as to his reassignment to Rickards Middle School, Respondent wrote Dr. LaCava, Petitioner’s North Central Area Superintendent, a letter protesting his teaching assignment at Anderson High. The letter, Petitioner’s Exhibit 26, contained the words EXTREMELY URGENT in four places and provided as follows:
Due to the fact that you, Dr. Harry J. Lacava, wantonly abused Article 25 Section D, it is gravely imperative that Mr. Black warn you of the following demanding facts:
FACT: Dr. Till clearly instructed
Mr. Black to return to Piper High School. However, you unbecomingly chose to brazenly defy and deny Mr. Black’s rights and inappropriately override Dr. Till’s specific directive, thus triggering massive confusion.
FACT: Dr. Gadson knowingly documented an horrific perjury against Mr. Black when he nefariously stated Mr. Black feared for the safety of Boyd Anderson students . . . [sic] in Dr. Gadson’s and Mrs. Frances Bolden’s August 10, 2004, letter to Dr. Melita.
FACT: Your illegal forcing Mr. Black to teach at Boyd Anderson High School contrary to his will has only added to the Black family’s profound pain and suffering, originally caused by the students’ asinine and malicious battery allegation at Piper High School and the superfluous and traumatizing SIU investigation that
followed.
FACT: Your illegal forcing Mr. Black to teach at Boyd Anderson High School contrary to his will is abjectly racist and grievously violates Mr. Blacks’ human dignity.
FACT: Your illegal forcing Mr. Black to teach at Boyd Anderson High School contrary to his will rudely violates [sic] all applicable ADA, EEOC, OCR, and United States Department of Justice laws and Mr. Black’s respective rights. One of Dr. Mendoza’s recommendations specifically states “Mr.
Black should not work in high stress settings (Boyd Anderson High School). Therefore . . . [sic]
FACT: Your illegal forcing Mr. Black to teach at Boyd Anderson High School contrary to his will demonstrably creates overwhelming clear and present danger to the extent that in the best interest of
Mr. Black’s rights, Mr. Black’s student’s education and the instructional program at Boyd Anderson High School at-large, at all costs Mr. Black positively must be immediately and PERMANENTLY removed from Boyd Anderson High School, where he was illegally transferred in the first place. Dr. Harry J. LaCava, you shall in no wise omit this emergency you have created.
3/ The APA complaint was resolved with a finding of no ethical violation. The DOH complaint was resolved by a stipulation.
The only alleged violation at issue when the stipulation was executed pertained to Dr. Forman’s alleged failure to document the limits of confidentiality of his evaluation and the failure to obtain written informed consent for all aspects of the evaluation. Respondent lodged similar complaints against Dr.
Mendoza.
4/ Respondent proposed the following finding of fact in paragraph 19 of its Proposed Recommended Order: “Apparently neither the Superintendent of Schools nor the School Board were ever made aware of Respondent’s concerns about Dr. Forman, or the fact he was required to be reevaluated by Dr. Forman after raising the concerns about the initial evaluation.” Respondent cites in support of that proposed finding testimony of
Dr. Melita beginning at page 43, Volume 1 of the Transcript. The undersigned has not adopted the proposed finding because Respondent copied the letter that constitutes Petitioner’s Exhibit 42, and contains complaints about Dr. Forman during the initial evaluation, to Dr. Till and the members of the School
Board. Respondent copied a similar letter (Petitioner’s Exhibit
40) to Dr. Till.
COPIES FURNISHED:
Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
Fort Lauderdale, Florida 33301
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761
James F. Notter, Superintendent Broward County School Board
600 Southeast Third Avenue
Fort Lauderdale, Florida 33301-3125
Dr. Eric J. Smith Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 2010 | Mandate | |
| Nov. 10, 2010 | Opinion | |
| Jul. 27, 2009 | Agency Final Order | |
| Mar. 03, 2009 | Recommended Order | Respondent`s employment should be terminated because he was unfit for duty. |
PALM BEACH COUNTY SCHOOL BOARD vs ALANA HOLLEY, 08-004490TTS (2008)
DADE COUNTY SCHOOL BOARD vs RAYNARD W. PASTEUR, 08-004490TTS (2008)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs MARIA DUPREE, 08-004490TTS (2008)
SCHOOL BOARD OF WALTON COUNTY vs ANN FARRIOR, 08-004490TTS (2008)
SCHOOL BOARD OF WALTON COUNTY vs LINDA RUSHING, 08-004490TTS (2008)
