vs.
Case No. 18-3886TTS
Respondent.
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy by video teleconference with locations in West Palm Beach and Tallahassee, Florida, on March 12 and 13, 2019.
Law Office of Thomas L. Johnson, P.A.
Whether just cause exists for Petitioner, Palm Beach County School Board ("Board"), to suspend Respondent, Lori Schwartz,
from her position as a Speech and Language Pathologist ("SLP") for a period of ten days without pay.
On June 20, 2018, at its scheduled meeting, Petitioner, the Board, took action to suspend Respondent, Lori Schwartz, from her teaching position at Sunrise Park Elementary School ("Sunrise Park") for ten days without pay. Respondent timely requested an administrative hearing. The Palm Beach County Public School System ("District") referred the matter to the Division of Administrative Hearings ("DOAH") on July 25, 2018, to assign an Administrative Law Judge to conduct the final hearing. The final hearing initially was set for October 1
and 2, 2018. The final hearing was continued twice at the request of the parties.
The final hearing was held March 12 and 13, 2019. The District charged Respondent with violating the following School Board Policies: School Board Policy 0.01(2)(c), Commitment to the Student; School Board Policy 1.013, (1)(4), Responsibilities of School District Personnel and Staff; School Board
Policy 3.10(6), Conditions of Employment; School Board Policy 3.02, (4)(a)(d)(f)(h)(j), Code of Ethics; and School Board Policy 2.34, Records and Reports.
At the final hearing, the Board presented the testimony of the following: Respondent; Susan Panajatov, Assistant
Behavioral Needs II; Alicia Steiger, Principal of Sunrise Park Elementary; Eileen Petersen, SLP Specialist; and Brenda Johnson, Human Resources Manager. The Board's Exhibits 1 through 7, 9 through 14, 16 through 23, and 27 (except for pages Bates stamped 170 and 171) were received into evidence. Respondent testified on her own behalf and presented the testimony of Traci Boysaw, Peer Assistance Review ("PAR") consultant, and Lisa Newman, Exceptional Student Education ("ESE") Coordinator.
Respondent's Exhibit 1 was admitted into evidence.
The two-volume final hearing Transcript was filed on April 11, 2019. The parties requested an extension of time within which to file their proposed recommended orders, which was granted. The parties timely filed proposed recommended orders, which were given consideration in the preparation of this Recommended Order. Unless otherwise indicated, all statutory references are to the versions in effect at the time of the alleged violations.
The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the
authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes.
Respondent began her employment with the District on August 3, 2005. Respondent is employed with Petitioner as an ESE teacher, teaching SLP at Sunrise Park. She has been a SLP for 32 years.
Respondent's employment is governed by the collective bargaining agreement between the District and the Palm Beach County Classroom Teachers Association ("CBA"), Board policies, Florida law, and Department of Education rules.
As an SLP, Respondent's duties include: testing and providing therapy to students who need assistance in speech or language skills; writing Individual Education Plans ("IEPs"); writing quarterly progress notes for her students; drafting the Plan of Care for each student; reevaluating students; and billing for Medicaid.
These duties are time-sensitive because a student's course of study and evaluation for needed accommodations to provide appropriate academic support rely upon the IEP and Plan of Care. There are also strict federal guidelines regarding when these items need to be accomplished.
In 2001, Respondent was diagnosed with multiple sclerosis ("MS"). MS is a progressive debilitating disease that results in physical deterioration. As a result of her MS,
Respondent has difficulty walking, using her hands, seeing, concentrating, and prioritizing tasks. Respondent testified that she continues to work because she "want(s) to help people communicate better and learn and progress to the next level."
To assist Respondent in performing her assigned duties, the District provided a variety of supports including: a walker and scooter to get around school; the assistance of a one-on-one paraprofessional to type and write for Respondent and to transport SLP students from their sessions with Respondent back to their classrooms; an enlarged computer screen to help her see; and individual coaching on time management and prioritization of tasks by Traci Boysaw, a teacher with the title of PAR Counselor. Respondent testified that she was provided with all the assistance she needed to perform her assigned duties. Respondent was also referred to the District's Employee Assistance Plan but declined to avail herself of that opportunity.
Circumstances Giving Rise to Respondent's Discipline
In accordance with the CBA, Respondent was subject to increasing levels of discipline for failing to follow directives and meet deadlines for certain tasks prior to her ten–day suspension.
On March 30, 2017, Respondent received a Verbal Reprimand with Written Notation ("Verbal Reprimand") from
Sunrise Park Principal, Alicia Steiger, for insubordination for not complying with directives to complete certain work by assigned deadlines given to her on September 2, 2016, and January 27, 2017.
In this Verbal Reprimand, Respondent was directed to adhere to all deadlines and complete testing and reevaluation of students by deadlines in April. She was also directed to ensure all documents for IEPs and reevaluations were completed before the specific meeting with the IEP team was scheduled.
Respondent was also directed to submit weekly logs by the end of the week to Principal Steiger and to follow all Board policies. She was advised that failure to adhere to these directives would be considered insubordination and result in further discipline.
On May 23, 2017, Respondent received a Written Reprimand issued by Principal Steiger for insubordination and violation of Board Policies 1.013, Responsibilities of School District Personnel and Staff; 3.10, Conditions of Employment with the District; 3.02, Code of Ethics; and 2.34, Records and Reports. Respondent was cited for not following the directives of the Verbal Reprimand and continuing to ignore deadlines for student testing, reevaluations, and submitting documentation. She also came to an IEP meeting on March 17, 2017, "wholly unprepared." Respondent was specifically advised, "[y]our
actions demonstrate a failure to fulfill the responsibilities of a teacher and to protect the learning environment."
Respondent received a second Written Reprimand issued by Dianna Weinbaum, Director of Professional Standards, on December 7, 2017. Like her prior discipline, Respondent was cited for failing to adhere to testing, meet student evaluation deadlines, and complete Plan of Care documentation following each IEP meeting. She was advised her failure to abide by prior directives constituted insubordination and violated various School Board policies.
Despite this progressive discipline and the extension of deadlines within which to complete certain tasks, Respondent failed to accurately or timely complete assignments.
On March 14, 2018, Respondent was advised that the Office of Personnel Services ("OPS") was opening an investigation into her ongoing "gross insubordination." On April 4, 2018, Respondent was informed in writing that the investigation was nearing completion and a predetermination meeting was set for April 17, 2018. Respondent was advised that she was being investigated for policy violations related to failure to fulfill responsibilities as a teacher, ethical misconduct, and gross insubordination.
The investigation confirmed that Respondent failed to meet specific deadlines and did not "complete work with
fidelity." Respondent submitted work replete with errors after multiple correction attempts or in some cases, not at all. This was despite years of additional support and close direction from Eileen Peterson, another SLP at Sunrise Park who provided Respondent with technical assistance for seven years.
Respondent was also provided a personal assistant, Susan Panatojov, who helped her with clerical duties and physically retrieving students for testing and therapy.
Respondent was also provided an additional eight hours per week to assist her in getting her work done and additional time to test her students. The District provided all accommodations which were requested by Respondent. Despite this extra assistance and reduced work load, Respondent still submitted work with multiple errors and on an untimely basis.
The April 17, 2018, predetermination meeting was held as scheduled and Respondent was provided an opportunity to provide additional information, dispute, explain, or elaborate on the information from the investigative report.
On May 29, 2018, Respondent was provided notice that the District Superintendent intended to recommend a ten-day suspension without pay to the Board at its June 20, 2018, meeting. The Board voted to accept the recommendation and this decision was timely challenged by Respondent.
At final hearing, Respondent admitted that her work was often untimely, contained errors, and that she had great difficulty in setting priorities and managing her time. She acknowledged that she missed the deadlines provided in the Verbal and Written Reprimands.
Petitioner argues that this behavior is a direct result of her medical condition, that she never refused an assignment, and that it was unintentional. However, Petitioner also conceded that she never advised Principal Steiger that she could not perform her job due to her physical challenges, was provided all requested accommodations, trained properly on how to perform her assigned tasks, and given an extensive variety of support services to help her perform the essential functions of her job.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018).
This is a disciplinary proceeding in which the Board in its Second Amended Administrative Complaint ("Administrative Complaint") seeks to suspend Respondent from her SLP position, without pay, for ten days for violating the following:
School Board Policy 0.01(2)(c), Commitment to the Student;
School Board Policy 1.013, (1)(4), Responsibilities of School District Personnel and Staff;
School Board Policy 3.10(6), Conditions of Employment;
School Board Policy 3.02, (4)(a)(d)(f)(h)(j), Code of Ethics; and
School Board Policy 2.34, Records and Reports.
Respondent is an instructional employee, as that term is defined in section 1012.01(2). Section 1012.33(1)(a) and (6)(a) authorize the suspension and termination of instructional personnel only for "just cause." "Just cause" is defined in section 1012.33(1)(a) to include "misconduct in office" and "gross insubordination."
To suspend Respondent's employment, Petitioner must prove that Respondent committed the acts alleged in the petition; that those acts violate the laws, rules, and policies cited in the petition; and that the violations of these laws, rules, and policies constitute just cause for her suspension.
§ 1012.33(1)(a), (6), Fla. Stat.
Petitioner has also charged Respondent with violating Florida Administrative Code Rule 6A-5.056(2), which states:
"Just cause" means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and
1012.335, Florida Statutes. In fulfillment of these laws, the basis for each such charge is hereby defined:
"Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
Ordinarily, the evidentiary burden in disciplinary proceedings in which a school board proposes to suspend or terminate instructional personnel is a "preponderance of the evidence." See, e.g., McNeill v. Pinellas Cty. Sch. Bd., 678
So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990). However, where, as
here, the School Board has agreed through collective bargaining to a more demanding evidentiary standard, it must act in accordance with the applicable contract. See Chiles v. United Faculty of Fla., 615 So. 2d 671, 672-73 (Fla. 1993); Palm Beach
Cty. Sch. Bd. v. Zedrick Barber, Case No. 15-0047 (Fla. DOAH
Aug. 31, 2015; PBCSB Oct. 13, 2015).
Article II, section M of the CBA, provides that "disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action." Accordingly, Petitioner has the burden of proof in this proceeding by clear and convincing evidence.
This burden, described in Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983), and later adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398, 404 (Fla. 1994), requires the following:
[T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington,
480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d
489, 491 (Fla. 1st DCA 1995).
School Board Policy 0.01(2)(c) Commitment to the Student provides, "[i]n fulfilling his obligations to the student, the educator shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety."
The ability of the District to provide ESE students with services that enable them to obtain a free and appropriate public education, as mandated by federal law, is dependent upon ESE teachers adhering to strict deadlines and timely completing testing, reevaluations, IEPs, Programs of Care, and regular progress assessments.
Respondent's own admissions and the overwhelming evidence presented by the Board proved by clear and convincing evidence that Respondent repeatedly failed to complete her tasks and adhere to timelines which resulted in her students not receiving the services they were entitled to and needed.
School Board Policy 1.013, (1)(4), Responsibilities of School District Personnel and Staff states, "[i]t shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules."
Respondent violated School Board Policy 1.013 when she knew of the requirements and directives, but failed to adhere to them after being provided with a significant amount of assistance. She received weekly one-on-one coaching and she was provided with a personal assistant who helped her with clerical duties and with physically retrieving students.
The evidence also clearly and convincingly demonstrates that Respondent violated School Board Policy 3.10(6), Conditions of Employment, which states, "[t]he District requires its employees to carry out their responsibilities in accordance to School Board Policy 1.013 (as may be amended), their job descriptions and reasonable directives from their supervisors that do not pose an immediate serious hazard to health and safety or clearly violate established law or policy."
There was no testimony or evidence that the directives given by Principal Steiger in the various memorandums and reprimands were unreasonable, posed an immediate serious hazard to health and safety, or clearly violated established law or policy. To the contrary, Respondent acknowledged that she understood the directives and even participated in setting the timelines. Consequently, the Board has carried its burden to show that Respondent violated School Board Policy 3.10(6).
Respondent was also cited for violating School Board Policy 3.02(4)(a)(d)(f)(h)(j),1/ the Code of Ethics. This policy provides in pertinent part:
Each employee agrees and pledges:
f. To take responsibility and be accountable for his or her acts or omissions.
h. To cooperate with others to protect and advance the District and its students.
j. To be efficient and effective in the delivery of all job duties.
Respondent's ongoing failure to provide accurate and timely work product violated School Board Policy 3.02(4)(f),(h), and (j). Respondent provided no rational explanation as to why she could not or would not submit accurate, complete, or timely work product. The clear and convincing evidence presented by the Board was that Respondent was wholly inefficient and ineffective in the delivery of her job duties.
By failing to complete the prescribed reports of student testing, retesting, and IEP documents, Respondent violated School Board Policy 2.34, Records and Reports, which
states:
All Board employees shall faithfully and accurately keep such records as may be required by law, State Board regulations, School Board policy or their supervisor. Such records shall include pupil attendance, property inventory, funds and other types of information. Reports of such records shall
be submitted on forms prescribed for such purposes and at designated intervals or dates.
The evidence demonstrated that the District did everything it could to help Respondent be successful in her duties as an SLP. The Board proved by clear and convincing evidence that Respondent committed gross insubordination by repeatedly ignoring specific directions regarding the accurate and timely completion of assigned tasks. The Board also proved by clear and convincing evidence that Respondent's violation of the above-cited policies constitutes "misconduct in office." As such, the Board had just cause to suspend Respondent's employment without pay for ten days.2/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the suspension of Respondent's employment for ten days without pay.
DONE AND ENTERED this 13th day of June, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2019.
1/ School Board Policy provisions 3.02(4)(a) and (d) are aspirational in nature and were not demonstrated by the Board. Accordingly, they are not addressed in this Recommended Order due to the other violations of the School Board Policy proven by the Board.
2/ Respondent's decades of dedicated service to ESE students is highly commendable. Unfortunately, it does not mitigate the harm done to these same students by failing to provide timely assessments resulting in the failure to provide much needed services.
Law Office of Thomas L. Johnson, P.A.
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
Donald E. Fennoy II, Ed.D. Superintendent
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.
