STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1620

)

DIANNE TICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings on August

23 and 24, and December 18, 1984, in Miami, Florida. The issue for determination in this proceeding is whether the respondent's suspension from employment should be sustained and whether she should be dismissed for the reasons set forth in the Amended Specific Notice of Charges dated May 24, 1984.

APPEARANCES

For Petitioner: Thomas H. Robertson

Merritt, Sikes & Craig, P.A. McCormick Building, 3rd floor

111 Southwest Third Street Miami, Florida 33130

For Respondent: Carl DiBernardo, P.A.

8603 South Dixie Highway, Suite 210

Miami, Florida 33143 INTRODUCTION

By an "Amended Specific Notice of Charges" dated May 24, 1984, the School Board of Dade County seeks to sustain its suspension of the respondent Dianne Tice and to dismiss her from her appointment with the School Board on the grounds that she is guilty of incompetency, misconduct in office and immorality as defined in Section 231.36, Florida Statutes. Factually, it is alleged that respondent intentionally, and without justification, inflicted personal injury upon a student by stabbing him in his hand; that she has been evaluated as unacceptable or deficient in certain categories on six separate occasions; and that a psychiatrist has diagnosed respondent as suffering from chronic paranoid schizophrenia and misperceptions.

In support of the charges against respondent, the School Board presented the testimony of students James Woody and Frederica Evans; Dr. Desmond Patrick Grey, accepted as an expert in the areas of teaching personnel evaluations and personnel management; Harold Jackson, a school resource specialist at the Jan

Mann Opportunity School North (Jan Mann); respondent Dianne Tice; Gail D. Wainger, accepted as an expert in psychiatry; Willie Shatteen, an Assistant Principal at Jan Mann; and Dr. Walter E. Oden, the Principal of Jan Mann.

Received into evidence were petitioner's Exhibits 1 and 3 through 6.

Respondent presented the testimony of the following personnel from Jan Mann; Tommy Johnson, a security guard; Mattye J. Phillips, a staff psychologist; Allene Jefferson and Shirley Strong, both teachers' assistants; and Henry Robinson, a teacher. Martha La Croix, the School Board's Supervisor of Home and Family Education, also testified on respondent's behalf. Received into evidence were respondent's Exhibits A through F, including the depositions of Mattye Phillips and Yvonne Perez, a bargaining agent representative for United Teachers of Dade County.

Subsequent to the hearing, the parties filed proposed findings of fact and proposed conclusions of law, which have been fully considered. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The respondent, Dianne Tice, began teaching home economics at the Jan Mann Opportunity School North (Jan Mann) in the 1981-82 school year. Jan Mann is a school devoted to students with behavior problems, attendance problems and learning disorders.

   
   

2. Student James Woody, thirteen years old, was a continuing discipline problem for teachers at Jan Mann. At the time of his admission to Jan Mann, there were discussions as to whether Woody was the type of student who should be admitted. The staff psychologist at Jan Mann believed that a more appropriate placement would have been a residential facility. Nevertheless, Woody was admitted to Jan Mann.

   
   

3. On March 13, 1984, Woody was attending respondent's fifth period home economics class. Due to his loud, profane language and banging on desks and chairs, respondent sent Woody to the Principal's office with a referral slip. Approximately twenty minutes later, Woody returned to the respondent's classroom and again became disruptive. Respondent then requested the security guard or hall monitor to either talk to Woody or again take him to the Principal's office. The hall monitor spoke with Woody, placed him back in the classroom and told respondent to put Woody outside the classroom with him if Woody caused any further trouble.

   
   

4. Thereafter, the respondent was in the front of the classroom when another student asked to be assisted with the placement of buttonholes in some pants she was sewing. The respondent picked up a pair of scissors, a seam ripper and some keys and began walking to the rear of the classroom to get other equipment from a cabinet so that she could assist the student. At this point, Woody again became disruptive -- pounding on desks and using loud, profane language.

5. The evidence is very conflicting as to what then transpired. Woody left his desk, and it is not clear whether respondent told him to leave the classroom before then or whether he was attempting to proceed to the rear of the room in order to use the restroom. In any event, Respondent was walking toward or behind Woody with the scissors, seam ripper and keys still in her hands.

   They both ended up at the rear door of the classroom, which opens and closes by means of a push bar. Woody was on the outside of the door and respondent was on the inside. The evidence is again conflicting as to whether respondent was attempting to hold the door closed so that Woody could not reenter her classroom, or whether she was attempting to open the door to either bring him back in or see where he had gone. Whatever she was attempting to do, Woody was either pulling or pushing in the opposite direction. The hall monitor, sitting some ten to fifteen feet away from the door, observed Woody at the door outside the classroom pulling on the door, and began to go over to the door when Woody released the door and cafe over to him. The monitor observed blood on Woody's hand and took him to the bathroom to wash his hand. He then went back to respondent's classroom and asked respondent how Woody had gotten cut.

   Respondent then ran into the bathroom to help.

   
   

6. What was said in the bathroom is also the subject of conflicting testimony. Woody at first told school personnel that he cut his hand while banging on a desk. Respondent told him not to try and protect her. Whatever was said, respondent does not deny that Woody may have been accidentally cut with the scissors, seam ripper or keys during the scuffle at the rear door of the classroom. After the incident, respondent told several people that she had cut Woody. There is no evidence, however, that respondent intentionally stabbed Woody's hand during the incident.

   
   

7. As noted above, respondent was first employed at Jan Mann for the 1981-

   82 school year. Her annual evaluation for that year indicates that she was rated acceptable in all categories of the evaluation and was recommended for re- employment by her then Principal, Robert Edwards. During this first year, respondent was also formally observed by the Dade County School Board Supervisor of Home and Family Education. She was found to be acceptable in all categories and all comments were very favorable.

   
   

8. During the 1982-83 school year, respondent was formally observed in her classroom on three occasions. In November of 1982, Assistant Principal Altman rated respondent unacceptable in the two categories of "classroom management" and "techniques of instruction," and acceptable in the remaining six categories. She was given an overall summary rating of acceptable. In January of 1983, respondent was again observed by Ms. Altman and received an unacceptable rating in three categories, but an overall summary rating of acceptable. Approximately one week after the January evaluation, respondent and Ms. Altman were involved in an incident which resulted in respondent filing a grievance against Ms. Altman for allegedly pushing her in the presence of her students. Principal Oden investigated the matter and decided that respondent's allegations against Ms. Altman were unfounded. In March of 1983, a Department of Education consultant performed an instructional program review and found respondent to have met all assessment standards. Additionally, it was noted that respondent was "commended for her management and organization of the facility." Respondent's annual evaluation by Principal Oden, dated June 9, 1983, indicates that she was rated acceptable in all categories except for the category entitled "preparation and planning." Principal Oden remarked that respondent "does a good job at teaching, but needs to devote more attention to planning." Respondent was recommended for re-employment by Principal Oden.

9. During the 1983-84 school year, Respondent had two formal classroom observations. Assistant Principal Willie Shatteen observed her classroom on October 6, 1983, and found her performance to be acceptable in all categories. His written comments included the following: "lesson plans are evident," "materials are arranged far in advance," "students orderly and attentive," and "has knowledge of background of each student to provide for individual's need." In a follow-up letter, however, Mr. Shatteen criticized respondent for not following her lesson plans and for her negative attitude toward constructive criticism. Several conferences were held between respondent and her supervisors in October and November, 1983. By letter dated November 17, 1983, Principal Oden expressed several concerns he had relating primarily to respondent's planning, teaching and classroom management skills, and made ten recommendations for improvement. Principal Oden formally observed respondent's classroom on December 8, 1983, and rated her acceptable in all categories except "preparation and planning," but gave her an overall rating of acceptable. His comments in the area of "preparation and planning" included "improvement may be achieved through better planning." A "conference for the record" was held on December 13, 1983, to discuss the recommendations made in the November 17th letter. Also discussed was the possibility that respondent would not be recommended for continued employment at Jan Mann should she fail to make the necessary improvements discussed in the November 17th letter. Another conference was arranged for a time between January 19, 1984, and January 25, 1984. The record is not clear as to whether that conference occurred. Respondent's lesson plans were submitted to and reviewed by her supervisors every week. While the January 4, 1984, review found that the plans were not organized to include certain items and that a conference was needed, the plans for the following five weeks were found to be "accepted" and, in one instance, "plans are excellent. No improvement is needed at this time."

   
   

10. Just prior to the March 13, 1984, incident involving student James Woody, Principal Oden decided that he was going to recommend respondent for a continuing contract. He told her this and her name was included on the list submitted to the School Board containing those recommended for a continuing contract. While be felt that there were some modifications needed in her teaching behavior, he also felt that there was room for her to improve with the beginning of a new year. Had it not been for the Woody incident, Principal Oden would have recommended respondent for a continuing contract. Indeed, his decision of "not recommended for employment" contained on the 1983-84 annual evaluation contains the remark "pending S.I.U. ..." -- referring to the investigation of the Woody incident by the School Board's Special Investigative Unit. Had respondent been cleared of the Woody incident, she would have been recommended by Principal Oden for re-employment on a continuing contract basis. His annual evaluation for the 1983-84 school year, signed on March 21, 1984, rates respondent as unacceptable in the two categories of "preparation and planning" and "professional responsibility," and acceptable in the remaining six categories.

    
    

11. Apparently in connection with the investigation of the Woody incident, a psychiatric evaluation of respondent was performed by Dr. Gail D. Wainger, a psychiatrist. After spending approximately one hour with the respondent on March 20, 1984 (the same day that respondent was informed that she would not be recommended for employment), Dr. Wainger concluded that respondent appears to be suffering from chronic paranoid schizophrenia, and that she experiences misperceptions and shows evidence of poor judgment. This diagnosis was based, in part, upon the respondent's expressions to the effect that the school

    administration was against her and was attempting to get rid of her and also her relating to Dr. Wainger incidents which occurred at an apartment complex in which she formerly resided. Dr. Wainger is of the opinion that respondent would be likely to decompensate during stressful situations.

    
    

12. On June 20 and 22, 1984, another psychiatric examination of respondent was performed by Dr. Lloyd Richard Miller, a psychiatrist. Dr. Miller spent approximately three hours with the respondent over two different days, performed some psychological testing, and also reviewed Dr. Wainger's psychiatric report. It was his conclusion that respondent did not suffer from a mental illness, and he did "not view her as guarded, suspicious or paranoid in any way. It was Dr. Miller's opinion that respondent has the sufficient mental capacity to return to work as a teacher.

    
    

13. An expert in the area of teaching personnel evaluation and personnel management employed with the Dade County School Board, Dr. Desmond Patrick Grey, reviewed respondent's personnel files, including her classroom performance and annual evaluations, the investigative reports of the Woody incident and Dr. Wainger's psychiatric report. Dr. Grey was of the opinion that respondent's performance evaluations indicate a serious problem that would limit her effectiveness as a teacher; that the Woody incident impaired the integrity of the profession and the respondent; and that respondent has an incapacity to perform the expected function of a teacher.

    
    

14. Three employees at Jan Mann testified in respondent's behalf. A school psychologist believed that respondent's character and reputation at Jan Mann were outstanding. A graphic arts aide felt that respondent was excellent dealing with the children and was dedicated in her occupation. A workshop instructor felt that respondent had been a "pretty competent teacher."

    
    

    CONCLUSIONS OF LAW

    
    

15. The Dade County School Board seeks to sustain respondent's suspension and to dismiss her from employment. The just cause alleged for such action is incompetency, misconduct in office and immorality. The facts alleged to support the misconduct in office and immorality charges are that respondent intentionally inflicted personal harm upon student James Woody. To support its charge of Incompetency, petitioner alleges that respondent's evaluations demonstrate "inefficiency" within the meaning of Rule 6B-4.09(1)(a)(1) and (2), Florida Administrative Code, and that Dr. Wainger's diagnosis demonstrates "incapacity" through lack of emotional stability within the meaning of Rule 6B- 4.09(1)(b)(1), Florida Administrative Code. In a disciplinary proceeding seeking the suspension and dismissal of a teacher, the School Board carries the burden of proving its charges against the teacher by clear and convincing evidence.

    
    

16. The evidence presented by the petitioner with regard to the Woody incident does not establish either misconduct in office or immorality as defined in Rule 6B-4.09(2) or (3), Florida Administrative Code. Instead, the facts demonstrate that if Woody was indeed cut by the respondent's scissors, keys or seam ripper (and this appears probable), such action on respondent's part was not an intentional stabbing of the student. Instead, the injury was a result of an unfortunate accident which occurred when the student was behaving in a disruptive and unmanageable manner for the third time during that class period -

    - the respondent having asked for outside assistance from her supervisor and hall monitor on the two prior occasions. While it certainly would have been more prudent for the respondent to have removed the sewing implements from her

    hands prior to pursuing the student to the rear door of the classroom, such an omission does not constitute immorality or misconduct in office so serious as to impair her effectiveness in the school system. Grounds for disciplinary action on the basis of the Woody incident have not been demonstrated.

    
    

17. "Incompetency" is defined in Rule 6B-4.09(1) as "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." As pertinent to the charges against the respondent, "inefficiency" is

    
    

    1. repeated failure to perform duties prescribed by law ...

    2. repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience

       ..." Rule 6B-4.09 (1)(a), Florida Administrative Code.

       
       

       "Incapacity" is defined as "lack of emotional stability." Rule 6B-4.09(1)(b), Florida Administrative Code. In support of its charge of incompetency, petitioner relives upon respondent's performance evaluations, Dr. Wainger's psychological report and the Woody incident.

       
       

18. The evidence does establish that respondent was rated unacceptable in several categories during the 1982-83 and the 1983-84 school years. However, the evidence also shows improvements in her performance, as illustrated by respondent's year-end annual evaluation for 1982-83; Assistant Principal Shatteen's October, 1983, classroom observation and, after a December, 1983 unacceptable rating for "preparation and planning," reviewer's assessments of her lesson plans submitted in January and February, 1984. Respondent's Principal, the person primarily responsible for recommending re-employment, admitted that were it not for the Woody incident, he would have recommended respondent for re-employment under a continuing contract. The petitioner failed to present sufficient evidence that respondent repeatedly failed to communicate with and relate to her students so that they were deprived of minimum educational experience. Indeed, after the two classroom observations and in the annual evaluation for the 1983-84 school year, respondent was rated acceptable in the two categories of "techniques of instruction" and "assessment techniques," designed to evaluate whether the teacher employs instructional and assessment techniques which motivate and enable students to learn. While Dr. Grey was of the opinion that respondent lacked competency as a teacher, it does not appear that he ever personally observed or evaluated respondent's performance in the classroom.

    
    

19. Petitioner alleges that both the Woody incident and Dr. Wainger's report demonstrate a lack of emotional stability, and that this supports disciplinary action based upon incompetency. Considering the environment and the nature of the Jan Mann Opportunity School, and the repeated incidents of disruptive behavior by Woody on the day that he was injured, it is concluded that this one isolated incident in which Woody was accidentally cut does not demonstrate emotional instability on respondent's part. The psychiatric report and conclusions of Dr. Wainger, who spent only one hour with the respondent on the same day that she was informed that she was not being recommended for re- employment, are contradicted by Dr. Miller's psychiatric evaluation and by the testimony of co-workers who observed respondent to be excellent with children, dedicated in her work and to have an outstanding character and reputation. The

    fact that respondent may have believed on the day of Dr. Wainger's interview that the Jan Mann administration was trying to get rid of her and that respondent had experienced difficulties in a Dade County apartment complex causing her to move do not appear to be sufficient grounds upon which to base a diagnosis of chronic paranoid schizophrenia.

    
    

20. In summary, it is concluded that the petitioner has failed to demonstrate that the respondent is guilty of incompetency, misconduct in office or immorality so as to justify her suspension or dismissal from her contract of employment pursuant to Section 231.36(1)(a), Florida Statutes. The charges against respondent not having been sustained, respondent is entitled to back salary from the date of her suspension to the date of the termination of her contract for the 1983-84 school year.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Amended Specific Notice of Charges against respondent Dianne Tice be DISMISSED, and that she be awarded back salary for the remainder of the contract period following her suspension.

Respectfully submitted and entered this 16th day of May, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.

COPIES FURNISHED:

Thomas Robertson, Esquire Merritt, Sikes and Craig, P.A. McCormick Building - 3rd floor

111 Southwest Third Street Miami, Fla. 33130

Carl DiBernardo, Esquire Commercial Bank of Kendall

8603 S. Dixie Highway - Suite 210 Miami, Fla. 33143

Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Fla. 33132

Docket for Case No: 84-001620

Orders for Case No: 84-001620