STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2452

)

LINETTE PIGFORD MARSHALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was held in this case on September 7, 1993, at Miami, Florida, before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James C. Bovell, Esquire

3211 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

Petitioner, School Board of Dade County, Florida, advised Respondent, Linette Pigford Marshall, that it was suspending her from her employment and initiating dismissal proceedings effective April 14, 1993, for gross insubordination, misconduct in office, and incompetency. Respondent timely requested a formal hearing regarding that determination, and this matter was transferred to the Division of Administrative Hearings to conduct a formal proceeding. Petitioner filed its Notice of Specific Charges on July 6, 1993, and Petitioner's Amended Notice of Specific Charges on July 21, 1993.

Petitioner presented the testimony of Larry Harmon, Ph.D.; Berta Lopez; Frederick Collins; Moses Holcomb; Melodie Mitchell; Cynthia Williams; Donald Lape; Clemencia Waddell; and Joyce Annunziata. Respondent testified on her own behalf and presented the testimony of Vera Joy, Donnyetta Marshall, Gloria Angel

Williams, Dominick Marshall, and Landon Marshall. Additionally, Petitioner's exhibits numbered 1-11 and Respondent's exhibit numbered 1 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment.

   
   

2. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule.

   
   

3. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations.

   
   

4. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first.

   
   

5. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son.

   
   

6. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again.

   
   

7. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him.

8. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony.

   
   

9. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known.

   
   

10. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself.

    
    

11. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her.

    
    

12. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face.

    
    

13. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner.

    
    

14. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school.

    
    

15. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day.

16. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

18. Section 231.36(4)(c), Florida Statutes, provides that any member of the instructional staff who is under continuing contract may be suspended or dismissed at any time during the school year if the charges against that employee are based on, inter alia, immorality, misconduct in office, incompetency, and gross insubordination. The Amended Notice of Specific Charges filed in this cause alleges that Respondent is guilty of each of those acts. Petitioner has met its burden of proof.

    
    

19. Count I alleges that Respondent is guilty of misconduct in office. Rule 6B-4.009(3), Florida Administrative Code, defines that term as follows:

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

    6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

    6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

20. Count I further alleges that Respondent has violated Rule 6B-1.001(3), Florida Administrative Code, part of the Code of Ethics of the Education Profession in Florida, by failing to maintain the respect and confidence of her colleagues, of students, of parents and other members of the community, and by failing to strive to achieve and sustain the highest degree of ethical conduct. That Count further charges that Respondent has failed to comply with Rules 6B- 1.006(3)(a) and (e) and (5)(a) and (n), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida.

    
    

21. The evidence is overwhelming that Respondent has not maintained the respect and confidence of those with whom she deals. She has been repeatedly counseled for intimidating verbally and physically students and co-employees. Her current principal testified that she would never hire Respondent again. The route salesman for Velda Farms testified as to his shock at seeing a teacher attack a student. Other teachers testified as to feeling threatened and intimidated by Respondent's aggressive behavior.

22. As to the Principles of Professional Conduct, the evidence reveals that Respondent does not make reasonable efforts to protect students from harmful conditions; rather, she creates those conditions. Similarly, she has been repeatedly counseled about intentionally exposing students to unnecessary embarrassment or disparagement but has continued to do so. Despite repeated directives, she intentionally focused negative attention on Tony when she physically attacked him and on the son of another teacher a month later when she verbally attacked him. She also violated those Principles by failing to maintain honesty in all professional dealings when she fraudulently attempted to be paid by Petitioner for a day's work by representing that she was on jury duty on a day when she was not and the courthouse was closed. Petitioner did not, however, offer competent testimony regarding any violation as to Subsection (5)(n), Florida Administrative Code, which forbids reprisal against individuals reporting certain violations. From those violations proven, however, the conclusion is inescapable that Respondent's misconduct is so serious as to impair her effectiveness in the school system.

    
    

23. Count II alleges that Respondent is guilty of gross insubordination. Rule 6B-4.009(4), Florida Administrative Code, defines gross insubordination as follows:

    
    

    (4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

    On a number of occasions, Respondent has received direct orders, reasonable in nature and given by and with proper authority, to refrain from using sarcasm and disparaging language with students, and to refrain from abusing and/or threatening staff members. Despite those directives, Respondent continued to intimidate students and to threaten other members of the staff. Her constant and continuing refusal to obey direct orders constitutes gross insubordination.

    
    

24. Count III charges Respondent with incompetency due to inefficiency.

    At the commencement of the formal hearing, Petitioner moved to further amend its Notice of Specific Charges by alleging that Respondent is also incompetent due to incapacity. Respondent had no objection to that amendment, and Petitioner's motion was granted. Rule 6B-4.009(1), Florida Administrative Code, defines incompetency as the inability or lack of fitness to discharge required duties as a result of inefficiency or of incapacity. Subsection (1)(a) defines inefficiency as the repeated failure to perform duties proscribed by law and also as the repeated failure to communicate with and relate to children in the classroom to the extent that students are deprived of the minimal educational experience. As to the second definition, Respondent's use of sarcasm and intimidation in her dealings with students is contrary to the minimum educational experience that students are entitled to receive.

    
    

25. As to the first definition, Section 231.09, Florida Statutes, requires that teachers comply with the rules of the school board. School Board Rule 6Gx13-4A-1.21 requires that all employees conduct themselves in a manner that reflects credit upon themselves and the school system. The evidence is clear that Respondent has not done so. Similarly, School Board Rule 6Gx13-5D-1.07 prohibits the use of corporal punishment. Respondent violated that Rule when

    she grabbed, choked, and shook Tony as a means of punishing him for engaging in an altercation with Respondent's son. Petitioner has proven that Respondent is incompetent due to inefficiency.

    
    

26. Petitioner has also met its burden of proving that Respondent is incompetent due to incapacity. Rule 6B-4.009, Florida Administrative Code, defines incapacity to include a lack of emotional stability. The Petitioner has proven that Respondent lacks the emotional stability to perform her duties as a teacher. The psychological testing and clinical interview given Respondent to determine her fitness for her duties revealed that she has difficulty handling stress, is unwilling to accept responsibility for her actions, blames others, is defiant of authority, and is likely to be aggressive and act out when under stress. Moreover, her personality is such that she should not be in a teaching position and, as the evidence reveals, she is a negative role model for children, not a positive one. Petitioner has proven that Respondent is incompetent due to her lack of emotional stability.

    
    

27. Count IV alleges that Respondent is guilty of immorality. Rule 6B- 4.009(2), Florida Administrative Code, defines that term as follows:

    
    

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    Respondent's unprovoked physical attack on the student, Respondent's repeated acts of intimidation and unprofessional conduct toward her co-workers, and her fraudulent attempt to obtain pay to which she was, without question, not entitled are all acts which are inconsistent with the standards of public conscience and good morals. Further, each of those acts was sufficiently notorious to bring Respondent and the education profession into public disgrace or disrespect. Respondent's own conduct has impaired her service in the community. Respondent is guilty of immorality as that term is defined.

    
    

28. The relief sought by Petitioner in this proceeding is termination of Respondent's employment with Respondent being suspended without pay until the effective date of such termination. There is no evidence which would mitigate against that severe penalty; rather, that penalty which would result in Respondent's removal from the classroom is the only appropriate penalty given Respondent's repeated unprofessional and aggressive behavior.

    
    

29. After this case was transferred to the Division of Administrative Hearings, Respondent filed a Request For Admissions requesting that the School Board admit that it did not have good cause to dismiss the Respondent. Pursuant to the Rules of Civil Procedure, failure to respond timely to a request for admissions results in such request being deemed admitted by operation of law. The attorney representing the School Board in this proceeding failed to timely respond to the Request For Admissions. Although he filed a denial of that Request approximately one month after his deadline for responding had expired, the denial was not accompanied by any request to be relieved of the legal consequences of failing to respond. At the commencement of the final hearing

    Respondent's attorney on the record offered the attorney for the School Board the opportunity to correct any of the School Board's pleadings filed in this cause, but the School Board's attorney failed to take advantage of that offer.

    
    

30. On November 8, 1993, Respondent filed her proposed recommended order, arguing that the School Board had admitted in this proceeding that it does not have good cause to terminate Respondent's employment. Yet, the attorney for the School Board waited until December 2, 1993, to file Petitioner's Motion to Withdraw Untimely Answer to Request For Admissions. Respondent's Objection to Petitioner's Motion to Withdraw Untimely Answer to Request For Admissions, filed December 6, 1993, points out that Petitioner's Motion itself failed to comply with the rules of the Division of Administrative Hearings which require consulting the other parties prior to filing any motion. Thereafter, Petitioner filed a reply to Respondent's objection, and Respondent filed a reply to the Petitioner's reply.

    
    

31. Although relieving a party from the effect of admissions made by that party is authorized, such relief would not normally be granted after the evidentiary hearing has been concluded. However, in this case the position of the School Board itself has been clear and consistent from the outset. The School Board voted to suspend Respondent without pay and to initiate this termination proceeding. Thereafter, this cause was transferred to the Division of Administrative Hearings, a Notice of Specific Charges was filed, an Amended Notice of Specific Charges was filed, the School Board filed a Prehearing Statement itemizing the issues in dispute in this proceeding and identifying its witnesses and exhibits, the School Board offered the testimony of nine witnesses at the final hearing and obtained the admission of eleven documents in evidence, and the School Board filed its proposed recommended order recommending that Respondent's suspension without pay be approved and that she be terminated from her employment.

    
    

32. It is apparent that the position taken by the attorney for the School Board in failing to timely respond to the Request For Admissions and then failing to take steps to correct his error is contrary to the consistent position of his client, the School Board of Dade County, Florida. Allowing Respondent to benefit from the errors of the attorney when the School Board has maintained a consistent and clear opposite position would result in the Respondent returning to her teaching position when the evidence is overwhelming that Respondent is incapable and/or unwilling to perform the duties required of a classroom teacher by the School Board of Dade County, Florida. Such an unjust result must be avoided, particularly where, as here, Respondent's presence poses some amount of risk to students and to other employees. Accordingly, Petitioner's Motion to Withdraw Untimely Answer to Request For Admissions be and the same is hereby granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida.

DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452

1. Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony.

3. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order.

4. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.

5. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein.

6. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein.

7. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause.

COPIES FURNISHED:

James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134

William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One

2929 Southwest Third Avenue Miami, Florida 33129

Octavio J. Visiedo, Superintendent School Board of Dade County

1450 Northeast Second Avenue Miami, Florida 33132

Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-002452

Orders for Case No: 93-002452