STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7035

)

IRMA B. LOWE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on March 23, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Frank R. Harder

Twin Oaks Building Suite 100

2780 Galloway Road

Miami, Florida 33165

For Respondent: Irma Annette Butler Lowe, pro se

17350 N.W. 17th Avenue Miami, Florida 333056

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).

PRELIMINARY STATEMENT

This case began on December 6, 1989, when the Board took action to suspend Respondent and to initiate dismissal proceedings against her. The basis for such action was Respondent's alleged incompetency, misconduct in office, gross insubordination, and willful neglect of duty. In the notice of charges filed by the Board on February 21, 1990, it alleged Respondent had chased students, grabbed one student by the neck, failed to supervise students, shoved a colleague, called a colleague a "thief," refused to accept a handicapped student into her classroom, locked disruptive students outside of the class, failed to appropriately discipline students, and failed to follow direct orders which were reasonable in nature. Respondent requested a formal hearing and the matter was forward to the Division of Administrative Hearings for further proceedings on December 26, 1989.

At the hearing, the Board presented the following witnesses: Joseph W. Poiret, M.D., a psychiatrist who performed a psychological evaluation of the Respondent; Arlene Godfrey, a teacher at Fulford Elementary School; Jonathan Charles Pierre, a former student of the Respondent; Bertha Neely, primary education program coordinator for region 2; Vincent Golden, a para- professional at Fulford Elementary; Mary Williams, a systems aide at Fulford Elementary; Charles Mixon, the manager of Pan Operations responsible for supervising school maintenance; Lossie Jordan, an exceptional education teacher at Fulford Elementary; Vera Reehil, former secretary at Fulford Elementary; Gertrude Knowles Pope, principal at Fulford Elementary; Dr. James Monroe, director in the Office of Professional Standards for the Board; and by deposition, Desmond Patrick Gray, Jr., Assistant Superintendent for the office of Professional Standards. Respondent testified in her own behalf.

The transcript of the proceedings was filed on April 20, 1990. The parties submitted proposed findings of fact which have been considered. Rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses the following findings of fact are made:

1. Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year.

   
   

2. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope.

   
   

3. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative.

   
   

4. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed.

   
   

5. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion

   Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls.

   
   

6. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters.

   
   

7. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up.

   
   

8. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside.

   
   

9. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school

   halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm.

   
   

10. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent.

    
    

11. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door.

    
    

12. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times.

    
    

13. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct.

    
    

14. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class.

    
    

15. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class.

    
    

16. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so.

    
    

17. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability.

    
    

18. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired.

    
    

19. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

21. Section 231.36 (1)(a), Florida Statutes, provides:

    
    

    Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, ,or conviction of a crime involving moral turpitude.

    
    

22. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

23. Rule 6B-4.009, Florida Administration Code, provides, in part:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one(1) or more of the following:

       (a) Inefficiency: (1) repeated failure

       to perform duties prescribed by law (Section 231.09, Florida Statutes); (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; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       Incapacity: (1)lack of emotional

       stability; (2)lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

       
       

24. In the case at issue, the Board has established that the Respondent lacks the emotional stability to perform her assigned responsibilities. As a result, the educational program for which Respondent was responsible was seriously impaired. Moreover, despite efforts from administrators to assist Respondent to take corrective measures, Respondent resisted help and was argumentative and verbally abusive to her peers. Respondent has continued to maintain that the principal, her co- workers, administrators and Dr. Poiret have conspired to remove her from the classroom. The Board has established that Respondent failed to perform her assigned duties, failed to comply with reasonable directives from the principal or other administrative staff, and failed to submit evidence of treatment or therapy. Accordingly, the Board has proved the Respondent is incompetent to perform her assigned duties.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district.

DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER:

1. Paragraph 1 is accepted.

2. Paragraphs 2 and 3 rejected as irrelevant.

3. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony.

4. Paragraph 5 is rejected as irrelevant.

5. Paragraphs 7 and 8 are rejected as irrelevant.

6. Paragraph 9 is accepted.

7. Paragraph 10 is accepted.

8. Paragraph 11 is rejected as hearsay.

9. Paragraph 12 is accepted.

10. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence.

11. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay.

12. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant.

13. Paragraph 20 is accepted.

14. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay.

15. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative.

16. Paragraph 24 is rejected as repetitive or irrelevant.

17. Paragraph 25 is rejected as recitation of testimony.

18. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative.

19. Paragraph 27 is accepted.

20. Paragraph 28 is rejected as irrelevant.

21. Paragraphs 29 through 31 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom.

2. Paragraph 2 is rejected as contrary to the weight of the credible evidence.

COPIES FURNISHED:

Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056

Frank Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

Docket for Case No: 89-007035

Orders for Case No: 89-007035