STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-334

)

JO LYN ALBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on April 9, 1979. Upon stipulation of counsel, the record was left open for the depositions of Elizabeth Wallace and Charles James, M.D. These depositions were received by the Division of Administrative Hearings on May 22, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

3000 Executive Building

3050 Biscayne Boulevard, Suite 300-E Miami, Florida 33137

For Respondent: Elizabeth J. du Fresne, Esquire

1782 One Biscayne Tower

21 South Biscayne Boulevard Miami, Florida 33131

By notice of charges dated February 23, 1979, petitioner alleged that respondent, while employed by petitioner and "assigned to the Primary 'C' Community School and to the N. B. Young Elementary School," was absent without leave on October 12, 19, 24 and 26; and November 1, 2 and 9, 1973; and on "seven

1. of the fourteen (14) days she should have been present at the Primary 'C' Community School" during the weeks before October 12, 1978; and that respondent "had been directed on numerous occasions to report to the Primary 'C' Community School and had failed to do so"; all in violation of Sections 231.36(6) and 231.44, Florida Statutes (1977).

   
   

   FINDINGS OF FACT

   
   

   1. The 1978-79 school year is respondent's sixth year as a music teacher in petitioner's employ. She attained continuing contract status in 1975-76. Since she has worked for petitioner, she has divided her time between two elementary schools. Joseph Charles Galocy, S. Edward Williams, Jr., and Albertha C. Arrington, all principals under whom respondent has worked, have found her attendance and her performance as a whole satisfactory.

   2. In the fall of 1978, she was assigned to Nathan Young and, for the first time, to Primary C. When she reported to Nathan Young at the beginning of the 1978 fall term, she spoke to Albertha C. Arrington, principal of Nathan Young, about her schedule for the upcoming school year. Ms. Arrington telephoned Dr. Charlie Williams, principal of Primary C, to discuss respondent's schedule. In the course of this telephone conversation, Dr. Williams "had a temper tantrum," yelled at Ms. Arrington and called her stupid. Ms. Arrington hung up but tried again another day; on her third attempt, Dr. Williams said something to the effect that he did not care what respondent's schedule was.

      Ms. Arrington then decided that respondent should teach Mondays, Wednesdays and Fridays at Nathan Young and Tuesdays and Thursdays at Primary C.

      
      

   3. On her way to school on Tuesday, August 29, 1978, respondent had car trouble. She called Primary C and told a secretary, Mrs. Moss, that she was stranded and would not be in. The following Tuesday, September 5, 1978, respondent called Primary C and told another secretary, Mrs. Olliff, that she was staying out because of illness. She had severe stomach pains that day and went to see a physician for advice. On September 26, 1978, respondent was unable to keep food down and again visited a physician's office instead of meeting her classes. Respondent was absent from Primary C on Thursday, September 20, 1978, and on the following Thursday, October 3, 1978. On both days she was ill and asked her physician to prescribe medication. From the beginning of the school year through October 3, 1978, respondent missed only one day's work at Nathan Young. In the opinion of Dr. Charles C. James, respondent's absences from Primary C, in the fall of 1978, were medically necessary.

      
      

   4. While she was working at Primary C, respondent felt harassed by Dr. Williams, the principal. He told her that the piano was too loud; that she should use the record player instead. When she used the record player, he told her to use the piano. He followed her down the hall. Respondent was tense and anxious; and became upset that she was not allowed to teach the way she had taught the five preceding years. Dr. Williams was in and out of her classroom, interrupting her in mid-sentence and in mid-song. He ordered her out of classes she was conducting, leaving classes unattended.

      
      

   5. On October 4, 1978, respondent went to see Dr. Dulin, an administrator who has charge of music instruction for petitioner. She complained to Dr. Dulin that Dr. Charlie Williams had caused such disruption of her classes and made working conditions at Primary C so unpleasant that she became physically ill at the prospect of reporting for work there, and she asked for a transfer. Dr. Dulin introduced respondent to Dr. Everett D. Abney, employed by petitioner as superintendent of the area in which Primary C is located. Respondent explained her position to the area superintendent, who told her he would look into the matter, but that she should continue reporting to Primary C in the interim.

      
      

   6. The following day, a Thursday, respondent appeared for work at Primary

      C. While she was teaching her first class, Dr. Williams walked into the classroom and told her to cancel her classes for the day so that she could write lesson plans. On October 10, 1978, the following Tuesday, Dr. Williams interrupted respondent's first class and asked her to come talk to him about lesson plans. He told respondent be wanted very little singing; that the children should instead be taught how to read notes and to appreciate the works of the masters. Respondent undertook to implement these instructions by playing Bach for her pupils and by playing tones which she asked the children to characterize as short or long. On Thursday, October 12, 1978, Dr. Williams interrupted respondent's classes on three separate occasions, once to tell her

      he did not like the song she was singing, another time to direct her to use different songs for different classes. The next Tuesday, October 17, 1978, respondent had stomach pains, diarrhea and spastic colitis; and she was throwing up. She telephoned Primary C to say she was not coming in and also called Dr.

      Abney's office. On Tuesday, October 24, 1978, and again on Thursday, October 26, 1978, respondent was ill, and telephoned Primary C to report that she was not coming in. On October 26, 1978, after she had called in sick, Dr. Williams called respondent and told her not to come back to Primary C. On November 2, 1978, respondent conferred with Eldridge Williams, an administrator in petitioner's employ, about her work situation. She did not meet her classes that day. At the conclusion of their conversation, Eldridge Williams told her he would be in touch with her. Since he had not communicated with her by November 9, 1978, respondent telephoned him. She understood him to tell her not to report to Primary C, so she began putting in extra time at Nathan Young.

      
      

   7. Respondent is not the only teacher who found working under Charlie Williams, the principal at Primary C, difficult. Ms. Jessie Sandilands, an elementary school teacher for 22 years, sought and obtained a transfer from Primary C, after repeated confrontations with Charlie Williams. Ms. Elizabeth Wallace, an elementary school teacher, found working under Charlie Williams' principalship "unbearable" and obtained a transfer to another school on December 12, 1978.

      
      

   8. During the fall of 1978, the policy at Primary C concerning teachers' absences on account of illness or for other unforeseen reasons required the teacher to telephone a secretary at the school to report the illness or other cause for the impending absence. Every time respondent was absent from Primary C before November 2, 1978, she complied with this policy by telephoning either the night before or early on the day of the absence.

      
      

      CONCLUSIONS OF LAW

      
      

   9. Petitioner relies on Section 231.44, Florida Statutes (1977), which makes a teacher's contract "subject to cancellation by the school board" upon the teacher's willful absence without leave; and on Section 231.36(6), Florida Statutes (1977), which authorizes dismissal of a teacher guilty of "gross insubordination or willful neglect of duty." Respondent presented uncontroverted evidence, however, that she complied with the appropriate procedures whenever she was absent from school, before November 2, 1978; and that she reasonably believed that she did not have to follow these procedures after her conversation with Eldridge Williams on November 9, 1978. Except for the day she had car trouble, respondent's absences wore medically necessary. Petitioner established no policy or other basis for finding that absences either because of car trouble or because of medical necessity amount to a neglect of duty, in these circumstances.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner reinstate respondent and pay her the wages she would have earned if she had not been suspended.

DONE and ENTERED this 30th day of May, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3000 Executive Building

Suite 300-E

3050 Biscayne Boulevard

Miami, Florida 33137

Elizabeth J. du Fresne, Esquire 1782 One Biscayne Tower

21 South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 79-000334

Orders for Case No: 79-000334