vs.
KATHLEEN P. COLE,
Respondent.
) Case No. 11-0250
Pursuant to notice, a final hearing was conducted in this case on April 12, 2011, in Largo, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.
For Petitioner: Laurie A. Dart, Esquire
For Respondent: Robert F. McKee, Esquire
The issue in this case is whether just cause exists to terminate Respondent, Kathleen P. Cole's ("Cole"), employment with Petitioner, Pinellas County School Board (the "Board"),
based on Cole's repeated and chronic tardiness, or conversely, whether Cole's tardiness is excused by a medical condition.
On November 15, 2010, Dr. Julie M. Janssen, Superintendent of Schools of Pinellas County, issued a letter to Cole indicating that she would recommend to the Board that Cole's employment be terminated. That letter was followed by a Request for Approval dated December 7, 2011, from Dr. Janssen to the Board, recommending termination of Cole's employment. The Superintendent's Request for Approval is deemed an Administrative Complaint for purposes of this matter. Cole requested a formal administrative hearing on the issues stated in the Administrative Complaint.
At the final hearing, Petitioner called the following witnesses: Kimberly Hill, principal at Leila Davis Elementary School (the "School"); Cynthia Bania, assistant superintendent for exceptional student education ("ESE"); Donna Moschberger, ESE associate; Marcy Streicher, ESE associate; Mona McGregor, guidance counselor; and James Lott, administrator of the Office of Professional Standards. Petitioner's Exhibits 1 through 12 were admitted into evidence without objection. Cole called the following witnesses: Sharon Krieger, psychiatric nurse practitioner; Bill Cole, husband; Kathleen Cole; and Sherin Tadros, parent of student. Cole's Exhibits 1 and 2 were
admitted into evidence. (All hearsay evidence was admitted subject to corroboration by competent, non-hearsay evidence or to supplement other evidence. To the extent such hearsay was not corroborated or did not supplement other evidence, it will not be used as a basis for any finding herein.)
The parties advised the undersigned that a transcript of the final hearing would be ordered. By rule, the parties are allowed ten days from the date the Transcript was filed at the Division to submit proposed recommended orders. The Transcript was filed on April 27, 2011. The parties subsequently filed a motion to extend the time for filing proposed recommended orders to May 20, 2011. The motion was granted. Each party timely submitted a Proposed Recommended Order, and both parties' submissions were given due consideration in the preparation of this Recommended Order.
The Board is the governing body responsible for hiring, firing, and overseeing all employees in the Pinellas County school district. Specifically, the Board has responsibility for administrative duties of the School.
At all times relevant hereto, Cole was an ESE teacher at the School. Before beginning work at the School in the
2005-2006 school year, Cole had taught school in North Carolina
for eight years. Cole was granted a Professional Service Contract by the Board on June 10, 2008.
Cole's classroom at the School was a self-contained classroom located apart from the main buildings of the School during 2007-2008 school year, the first year at issue in this proceeding. She had one paraprofessional assistant, referred to as an "associate" by the Board, during that school year. During the 2009-1010 school year, Cole's classroom was located in a pod, i.e., within the main buildings of the School. She had one associate that year. In the 2010-2011 school year, Cole was again located in a pod; she had one full-time associate and one part-time associate. The part-time associate was assigned to one particular special needs student.
There were no significant problems with Cole's attendance or punctuality during her first two years of employment at the School. During the 2007-2008 school year, Hill, the assistant principal at that time, began to get word that Cole was missing meetings and coming to work late. Hill began to keep an eye on Cole so as to confirm or refute the allegations she had heard about Cole.
Pursuant to her investigation, Hill determined that Cole was coming in to work late frequently. Further, Hill found that Cole was either not attending meetings or leaving meetings early without providing any excuse. Hill met with Cole, and
Cole frankly admitted that she was having difficulty arriving at school on time each day. Cole said the reason for her tardiness was a medical condition, but the particular condition was not made known to Hill at that time.
The school day for students in the 2008-2009 school year began at 8:50 a.m. Students were allowed to come onto the School campus 30 minutes prior to the start of the school day, i.e., at 8:20 a.m. All teachers were expected to be at school by 8:20 a.m., each day so that they could supervise the children. Supervision was especially important for ESE students. In Cole's own words, it is important that a classroom teacher be with her students from the time they arrive at school. She said that was "[f]or safety, for consistency, for the continuance of instruction. [Students] need to see the routine and that every day is predictable." See Transcript, page 192.
In the 2009-2010 school year, the start time for classes was changed to 8:35 a.m., with students being allowed to come on campus at 8:05 a.m. Teachers were, therefore, required to be on campus beginning at 8:05 a.m. in order to supervise the students.
At the beginning of the 2008-2009 school year, the principal met with Cole to discuss the tardiness and attendance issues. Cole apologized for her lack of improvement in this
area, but said that she had some medical issues, including anxiety, that she was working on. Principal Hughes provided Cole with a copy of a brochure for a program offered to all school employees. The program provided assistance to teachers in the realm of time management. Cole said she was already familiar with the program and had made an appointment to attend a program meeting the following week.
An informal "success plan" was developed by Cole and Hughes to assist Cole with her problem. The plan included a requirement that Cole sign in at the front office each day when she arrived so that her punctuality could be recorded. The plan also required Cole to be at school at a specific time each day.
Cole's tardiness did not improve, so Hughes scheduled a formal conference with Cole on January 8, 2009. Hill, as assistant principal, also attended the conference. According to the written summary of the conference, Cole had stopped signing in regularly at the front office in October, even though the process had worked well up until that time. After December 5, 2009, Cole had not signed in at all. After some discussion, another success plan was created.
The new success plan again set forth the requirements for Cole's attendance at meetings and timely arrival at school.1/ The plan addressed the areas of concern and provided steps that would be taken to rectify the problem areas. The plan was
signed by Cole, Hughes, and Hill on January 12, 2009. The conference summary clearly advised Cole of the seriousness of the situation and the need to closely follow the success plan.
The 2008-2009 school year ended without any further formal action taken by the School concerning Cole's tardiness. However, the associate in Cole's room said that Cole was constantly tardy even after the January 12, 2009, meeting. She did not, however, report the tardiness to School administration.
Hill became the principal at the School commencing with the 2009-2010 school year. Hill soon realized that Cole's tardiness had not gotten any better and determined that something more had to be done to remedy the situation. Hill set up sign-in sheets for all teachers in an effort to make it more comfortable for Cole to sign in each day. Hill gave Cole her (Hill's) personal cell phone numbers so that Cole could contact Hill when Cole was going to be late. No other teachers were provided with Hills's phone numbers, but Hill was trying to find a way to make sure that Cole's students would have proper supervision if Cole was going to be late. Hill then began to document Cole's arrival time so that she could determine whether there was any improvement. She used other teachers and employees to help her keep track of Cole's arrival time.
By December, Hill decided that Cole's tardiness had to be addressed more formally. She convened a meeting including
herself, Cole, a union representative, and the assistant principal. During the meeting she reiterated the need for Cole to arrive on time and to find a way to remedy her problem. Hill reviewed Cole's conduct over the past several weeks and, for the first time, expressed an understanding of Cole's medical claim, i.e., that she had Attention Deficit Disorder ("ADD"). Cole advised Hill that she had a note from a physician indicating she had the condition, and Hill advised Cole to submit the note to the Office of Equal Opportunity ("EEO") so that they could investigate possible accommodations. At the meeting, the participants discussed Cole's seeming inability to comply with strict requirements for teachers' attendance at school.
Two days after the meeting, Hill issued a Letter of Caution to Cole, recapping some of the discussion from the meeting. The letter constituted a formal demand that Cole begin to comply with the normal work day requirements for all teachers. The letter was signed and acknowledged by Cole on December 4, 2009.
By that date, Hill had begun to document Cole's tardiness on a school calendar. It is clear that Cole was late almost 50 percent of the school days in the 2009-2010 school year. Conversely, Cole worked late quite frequently during that school year. Her husband said he often had to call her at night to remind her to come home.
Cole eventually asked the School for some accommodations to help her with her ADD condition. She asked to be moved from an interior room in the pod formation to an exterior room so that she would have fewer distractions. Hill granted the request, even though she believed the real purpose of the move was to allow Cole to slip into an exterior door when she was late, rather than pass through another teacher's area. Cole also asked that furniture be rearranged, desks and bookshelves replaced, and other classroom changes. For some reason, Cole frequently rearranged her classroom furniture.
Hill did not know exactly how these actions constituted an "accommodation," but was willing to try anything to get Cole to arrive at school timely. Cole also asked for some flexibility as to her arrival time. Hill granted her some "flex time" in that regard, but it appears to be the same flex time afforded all teachers. That is, students would start arriving on campus at 7:35 a.m., but some teachers who requested it were afforded the opportunity not to show up until 8:05 a.m., under the flex time policy.
Meanwhile, Cole asked the EEO to allow her other accommodations, including: 1) Altering the start time for her students to report to school; 2) Guaranteeing that Cole would always be in a self-contained classroom, i.e., a portable; and
Granting flex time that would allow Cole to report to work
late at times. The EEO acknowledged that Cole had a "medical condition that limits one or more major life activities under [the Americans with Disabilities Act]." Cole's physician also said that Cole was "limited in major life activities of working and learning" and also that she would "experience difficulty in the working environment when interrupted." EEO recommended that Cole follow the directions of her physician, participate in psychotherapy, and take the appropriate medication to treat her condition.
Cole seemed to have good rapport with her students or, at least, with their parents. A parent testified at final hearing that her child would not have progressed as well as he did without Cole's diligence and attention to her son's needs. Hill and others observed Cole interacting well with her students on many occasions and deemed Cole a good classroom teacher.
Cole's associates, however, thought that Cole did not seem to be as connected to her students as other teachers were to their students. For example, Cole did not take the students to the lunchroom, gym class, or other activities outside the classroom. Rather, she left that task to the associate. Also, Cole did not provide her associates with written lesson plans or a schedule of activities. When Cole was absent--or tardy--the associates would simply find ways to keep the students occupied. One of her associates, Moschberger, asked for a transfer out of
Cole's room during the 2010-2011 school year, but Cole was dismissed in October 2010, making the request moot.
At the end of the 2009-2010 school year, Hill became more concerned about Cole's repeated and chronic tardiness, so she asked James Lott, the administrator of the Office of Professional Standards, to get involved. Lott attempted to schedule a meeting with Cole, but a conflict arose on the proposed date. Lott rescheduled the meeting, but issues with Cole's union representatives caused the meeting to be cancelled. Lott made an assumption that Cole was attempting to avoid the meeting, so he placed Cole on paid administrative leave until such time as the meeting could be held. The dates of the paid administrative leave were the final four days of the 2009-2010 school year, meaning that Cole missed the "moving on" ceremony for her students. A meeting was ultimately held, resulting in Cole's being issued a Letter of Reprimand dated July 12, 2010. The letter advised Cole that failure to comply with the school schedule might result in disciplinary action including, but not limited to, suspension without pay or a recommendation for termination of employment.
Almost immediately upon the start of the 2010-2011 school year, Cole came to school late. On the second day of that school year, Hill emailed Lott to vent her frustration that Cole was already tardy. Further, Hill complained that Cole left
the faculty meeting and other training sessions without any explanation. Cole also failed to attend important committee meetings and mandatory ESE meetings, which were used to discuss important issues for the new school year.
A couple of weeks into the new school year, Cole allegedly cancelled her Open House, a "meet and greet" event to allow parents to meet their children's new teachers. Each teacher was expected to host such an event on a specified night. Cole says she was at the Open House for her classroom, even though she had laryngitis and a fever. Hill, however, had seen Cole on a video camera as she was leaving the School prior to commencement of the event. There was no completely persuasive evidence presented at final hearing to establish whether the Open House occurred or not, but that fact is not dispositive of the recommendation made herein.
As the 2010-2011 school year progressed, Hill continued to keep a calendar of Cole's attendance. Cole was late 23 of 44 days before the School decided to take action. On October 21, 2010, the School placed Cole on paid administrative leave pending further action by the Board. Cole was then offered the opportunity to return to a classroom by taking a position at Sexton Elementary School. However, inasmuch as Sexton Elementary was some 45 minutes drive time from Cole's home and knowing that she was already having a problem getting
to work on time, Cole refused the offer. She considered it a recipe for failure, not an opportunity to start anew.
The Board met on December 7, 2010, and considered a recommendation from the superintendent that Cole's employment with the School be terminated.
Cole was asked directly by the School how it might accommodate her or help her to be successful at the School. Cole said that she wanted the following:
A little flexibility;
To be treated like the rest of the teachers at the School;
Some acknowledgement of her positive changes; and
Not to be punished for being late.
It appears from the record that the School has given Cole some flexibility--it allowed her to arrive later than other teachers were required to arrive. The School treated Cole like other similarly situated teachers. At one point, the School had all teachers signing in each morning as an accommodation to Cole, even though others were not having tardiness problems. Cole's annual performance appraisals, along with comments from her principal, indicate that Cole's accomplishments are recognized. As to not punishing her for being late, there is no reasonable rationale for that request. Even Cole admits that it
is important for teachers to be in the classroom the entire school day, every day.
No testimony was provided by Cole or her medical professional as to whether Cole would be any more apt to be on time should her schedule be altered. That is, if she was allowed to come to school a half-hour later than other teachers, there is no reason to believe she would meet that requirement. According to Cole's own testimony, she has always had an issue with timeliness, and admitted, "the harder I try, the worse
I get."
According to Cole's medical professional, Cole would not be likely to meet the attendance requirement of her job, an essential function for teachers. She would be "unable to report to work" in a substantive way, i.e., by being late at times. The medical professional further appraised Cole's prognosis as only "fair to good." However, she believes that Cole may be able to function in a teaching environment if certain accommodations were made.
There was no persuasive testimony at final hearing as to what time could be established for Cole's arrival at school that would work as an accommodation for her.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this
proceeding pursuant to a contract with the School District of Pinellas County. The proceedings are governed by section 120.57 and 120.569, Florida Statutes (2010). (Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2010 codification.)
The superintendent of Schools for Pinellas County, Florida, has the authority to recommend to the School Board that an employee be suspended or dismissed from employment.
§ 1012.27(5), Fla. Stat.
The Board has the authority to terminate the employment of or to suspend instructional personnel without pay and benefits. See § 1012.22(1)(f).
The burden of proof in this proceeding is on Petitioner to prove, by a preponderance of the evidence, just cause exists to suspend or terminate the employment of Cole. McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996). Preponderance of the evidence is evidence that more likely than not tends to prove the proposition set forth by a proponent. Gross v. Lyons, 763 So. 2d 276 (Fla. 2000).
In the absence of a rule or written policy defining just cause, the Board has discretion to set standards which subject an employee to discipline. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless, just cause for discipline must rationally and logically relate to an
employee's conduct in the performance of the employee's job duties and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling, or misconduct. State ex. Rel. Hathaway v. Smith, 35 So. 2d 650 (Fla. 1948); In Re: Grievance of Towle, 665 A. 2d 55 (Vt. 1995).
Just cause for purposes of discipline is discussed in section 1012.33, viz:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted and found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
The charging document in this matter alleges violation of the following Board policies:
3140A(9)--Excessive absenteeism or tardiness;
3140A(17)--Failure to perform the duties of the position;
3140A(19)--Failure to correct performance deficiencies;
3140A(20)--Insubordination; and
3140A(23)--Failure to comply with Board policy, state law, or appropriate contractual agreement.
It is clear from the record that Cole was excessively tardy. The Board deemed her absence from class tantamount to failure to perform the duties of her position. Cole did not
correct this problem, even after various efforts on the part of the School and Cole. Cole's refusal to attend or remain at important scheduled meetings constitutes insubordination. By her continued actions, Cole failed to comply with Board policies and her contractual agreement.
In the instant case, Cole's continued inability to arrive at school on time so as to supervise the children in her care, plus her on-going failure to attend scheduled meetings, would constitute just cause for termination of her employment. If Cole's inability to arrive on time was completely due to a documented medical condition, just cause might not exist for terminating her employment. However, there is insufficient evidence to conclude that Cole's condition is untreatable or necessarily causes her tardiness.
The Board has met its burden of proving, by a preponderance of the evidence, that termination of Cole's
employment is warranted.
RECOMMENDED that a final order be entered by Petitioner, Pinellas County School Board, upholding the termination of Respondent, Kathleen P. Cole's, employment for the reasons set forth above.
DONE AND ENTERED this 17th day of June, 2011, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2011.
1/ The success plan also addressed the need to complete all students' Individualized Education Plans, but it appears that issue was successfully resolved and is not relevant to the instant proceeding.
Dr. Eric J. Smith Commissioner of Education Department of Education
Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board
Laurie A. Dart, Esquire Pinellas County Schools
Robert F. McKee, Esquire Kelly & McKee
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.
