STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3964

)

PATRICIA J. SPENCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 20, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Attorney's Office

School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

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

Whether Respondent's continuing contract of employment with the Petitioner should be terminated for incompetency or for gross insubordination and willful neglect of duty.

PRELIMINARY STATEMENT

Respondent is an elementary classroom teacher employed by Petitioner pursuant to a continuing contract of employment. On July 7, 1993, the Petitioner took action to suspend Respondent's employment and initiated these proceedings to terminate her continuing contract. Respondent timely challenged the Petitioner's actions, and this formal proceeding before the Division of Administrative Hearings followed. Petitioner's Notice of Specific Charges was filed October 1, 1993. The Notice of Specific Charges contain certain factual allegations and notifies Respondent that Petitioner is proceeding to terminate her continuing contract on the grounds of incompetency and on the grounds of gross insubordination and willful neglect of duty.

At the formal hearing, Petitioner presented the testimony of Dawn Hurns, Raquel Montoya, James Moye, and Joyce Annunizata. Petitioner offered 38 exhibits, each of which was accepted into evidence. Petitioner's Exhibit 1 was the deposition of Norma Bossard. At the times pertinent to this proceeding, Ms. Hurns was the principal and Ms. Montoya was the assistant principal of Palm Springs North Elementary School 1/ , and Dr. Moye was the principal of Miami Lakes Elementary School. Ms. Bossard was an employee of the Petitioner who observed and evaluated Respondent's job performance. Dr. Annunizata is employed by Petitioner in its Office of Professional Standards and was accepted as an expert witness in the fields of performance appraisal, personnel management, and professional code of ethics.

Respondent testified on her own behalf and presented five exhibits, including the deposition testimony of Lani Kaskel, Ph.D.; Dr. Olive Chung-James, M.D.; and Dr. Kenneth C. Fischer, M.D. These doctors are health care providers who rendered care to the Respondent.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, the Respondent has been employed by Petitioner as an elementary school classroom teacher pursuant to a continuing contract of employment. Respondent is 57 years of age and has been a classroom teacher for a total of 29 years. She began working for Petitioner during the 1975-76 school year and has worked under a continuing contract since August 1980. Prior to that time, she was a classroom teacher in Winter Park, Florida.

   
   

2. In 1980, Respondent's principal observed that Respondent was habitually tardy at the work site and had difficulty accepting criticism.

   
   

3. During the 1983-84 school year, Respondent's principal found Respondent to be deficient in classroom management, student-teacher relationships, instructional techniques, and supportive characteristics. Efforts to have Respondent correct these deficiencies were unsuccessful. A prescription of assigned activities was developed in an effort to help Respondent to correct these deficiencies. Respondent was required to attend a teacher education course in classroom management to obtain ideas on how to better manage her class. Respondent failed to complete that course. She also failed to follow administrative directives that she arrive at school on time and that she maintain anecdotal records for students. Respondent's poor teaching performance and insubordinate behavior in failing to follow directives led Respondent's principal to recommend that her employment be terminated. No action was taken on that recommendation.

   
   

4. There was no evidence as to Respondent's job performance between the 1983-84 school year and the 1991-92 school year.

5. From 1991 through 1993, Respondent was assigned to teach a second grade class at Palm Springs North Elementary (Palm Springs). Dawn Hurns was the Respondent's principal at Palm Springs and Raquel Montoya was her assistant principal.

   
   

6. Respondent frequently took her class to lunch earlier than scheduled and picked her class up from lunch after the period had expired. Ms. Montoya directed Respondent to adhere to her lunch schedule. Respondent failed to comply with that directive. On February 6, 1992, Ms. Montoya advised Respondent that her continued failure to adhere to administrative directives would result in formal disciplinary action being taken against her.

   
   

7. During the 1992-93 school year, Ms. Hurns observed Respondent's performance and noted deficiencies pertaining to record keeping, attendance, tardiness, and organizational skills. After formally observing Respondent's deficient classroom performance, Ms. Hurns met with Respondent and gave her an opportunity to work on her deficiencies. In subsequent observations, both Ms. Hurns and Ms. Montoya found Respondent's performance to be deficient. In an attempt to remedy her unacceptable performance in the classroom, Respondent was provided prescriptive activities designed to improve her classroom management.

   
   

8. On November 2, 1992, Ms. Hurns issued Respondent a memorandum addressing her chronic tardiness to school and her failure to notify the school of her expected tardiness in violation of her professional responsibilities. As a result of frequent tardiness, Respondent's students were often left unattended on the basketball court where they assembled before school began. Ms. Hurns often had to escort Respondent's students to their classroom in the absence of the Respondent.

   
   

9. Ms. Hurns held a "Conference for the Record" (CFR) with Respondent on December 10, 1992, to address her unacceptable performance and to notify her that continued unacceptable performance would yield an unacceptable annual evaluation. Ms. Hurns also offered Respondent assistance in correcting her deficiencies, including a referral to the Petitioner's Employee Assistance Program (EAP). Although two meetings were scheduled for Respondent at the EAP, Respondent did not attend either meeting and did not take advantage of the EAP.

   
   

10. By December 21, 1992, Respondent had received two unacceptable observations, which yielded an unacceptable summative assessment as established by Petitioner's Teacher Assessment and Development System (TADS). 2/

    
    

11. On January 13, 1993, Ms. Hurns completed a TADS summative assessment form that found Respondent's classroom performance unacceptable in three out of seven categories. The first category was "Knowledge of Subject Matter" with the observed deficiency being ineffective presentation of the subject matter. The second category was "Teacher-Student Relationships" with the observed deficiency being the failure to attempt to systematically involve all students in class activities. The third category was "Assessment Techniques" with the observed deficiency being the failure to properly record grades for students. Ms. Hurns observed Respondent's grade books and discovered that, except for one or two grades in reading, there were no grades or other assessment of the students' work over a period of nine weeks. Respondent was directed to follow the prescribed grading policy, which required a teacher to have at lease one grade per week for each subject area. It was impossible to adequately assess students' work with such few grades or with no grades at all.

12. In addition to the foregoing, Respondent continued to be absent or tardy without excuse.

    
    

13. On January 14, 1993, Ms. Hurns held a CFR with Respondent to discuss Respondent's lack of compliance with her professional responsibilities, her irregular attendance, and her frequent tardiness. At the CFR, Respondent was directed to notify an administrator of her intent to be absent or tardy to school, to provide lesson plans for her substitutes, and to provide grades for her students.

    
    

14. By memorandum dated February 17, 1993, after a prolonged absence by Respondent, Ms. Hurns advised Respondent of her continuing failure to complete her prescribed activities, and her continuing lack of attendance. Ms. Hurns directed Respondent to either take a leave of absence and notify the school when she expected to return or to resign.

    
    

15. On March 8, 1993, Ms. Montoya notified Respondent of her continued disregard for administrative directives. After a parent requested to see proof of her daughter's lack of academic progress in Respondent's classroom and complained of Respondent's refusal to assist the parent in improving her child's performance, Respondent was directed by Ms. Montoya to provide the parent with a daily progress report on the student's performance. Respondent failed to comply with this directive.

    
    

16. On March 11, 1993, Ms. Hurns formally observed Respondent's classroom performance and noted that Respondent had not complied with School Board rules, labor contract provisions, and school site rules. Respondent did not maintain accurate student records pertaining to grades for her students, she had not completed her prescriptive activities, and she continued to be absent on a frequent basis. Ms. Hurns held another CFR with Respondent on March 11, 1993, and told her that her continuing failure to comply with the administrative directives given January 14, 1993, constituted gross insubordination.

    
    

17. As a result of Respondent having obtained two unacceptable summative assessments, Ms. Hurns requested that Petitioner send to Palm Springs a trained observer to conduct an observation of the Respondent's performance. In response to that request, Norma Bossard, a Language Arts supervisor who had been trained as a TADS observer, was sent by Petitioner to observe the Respondent. Ms. Hurns was present when Ms. Bossard conducted her formal observation of Respondent's classroom performance. Both Ms. Hurns and Ms. Bossard found Respondent's performance to be unacceptable in the following categories: "Preparation and Planning," "Knowledge of the Subject Matter," "Techniques of Instruction," and "Assessment Techniques".

    
    

18. During the external observation, Respondent gave a lesson on spelling that lasted approximately an hour longer than it should have. Respondent also failed to give her students a pretest to determine whether the spelling lesson was even necessary.

    
    

19. The external review by Ms. Bossard was consistent with the observations made by Ms. Hurns as to deficiencies in the Respondent's job performance. Ms. Bossard concluded that Respondent was wasting the time of her students. Ms. Bossard observed that Respondent appeared to be very wide-eyed and disoriented.

20. On April 19, 1993, a CFR was held with Respondent at the Petitioner's Office of Professional Standards to address her unacceptable performance in the classroom, her insubordination in the form of her continued noncompliance with directives relating to her assigned prescriptive activities, and her excessive absences and chronic tardiness. At this CFR, Respondent was again directed to comply with previous administrative directives, and was informed that such compliance had become a condition of her continued employment.

    
    

21. By the end of the 1992-93 school year, Respondent had been absent at least 59 days and had been tardy on at least 31 occasions. Despite being specifically told to do so, Respondent frequently failed to call the school and inform school administrators that she would either be absent or tardy.

    
    

22. Although Respondent was chronically absent from the work site, she failed to provide lesson plans for substitute teachers. Respondent's persistent absenteeism, failure to provide lesson plans, and lack of assessment of students' work had a detrimental impact on the students assigned to her classroom.

    
    

23. As a result of Respondent's continued unacceptable classroom performance, her failure to remediate her deficiencies and her failure to comply with administrative directives, Respondent received an unacceptable annual evaluation by Ms. Hurns. Ms. Hurns submitted a recommendation that Respondent's employment with the Petitioner be terminated.

    
    

24. Ms. Hurns had intended to hold a CFR with Respondent to address her unacceptable annual evaluation, but Respondent was absent from school for an extended period of time and the CFR was not held.

    
    

25. On July 7, 1993, Petitioner suspended Respondent's employment on the grounds of gross insubordination and incompetency and instituted these proceedings to terminate her continuing contract.

    
    

26. Petitioner established that there was a continuing refusal to comply with administrative directives by Respondent and that she failed to abide by procedures for maintaining adequate grading of the work of her students, did not provide appropriate lesson plans, and failed to take advantage of the prescriptive activities assigned for her performance improvement.

    
    

27. Respondent's considerable and excessive absences from the classroom and her failure to provide lesson plans and properly grade students' work resulted in a failure to communicate with and relate to her students to such an extent that Respondent failed to provide her students with a minimum educational experience.

    
    

28. Despite the fact that Respondent was given ample opportunities to correct her behavior, she constantly and intentionally refused to obey direct orders to contact administrators when she was going to be absent or tardy, to provide lesson plans for her substitutes, and to maintain grades for her students.

    
    

29. Ms. Hurns and the other administrators involved in evaluating Respondent's performance, took reasonable measures to communicate directly with Respondent about her classroom deficiencies and her attendance.

30. At the formal hearing, Respondent testified that she became confused and disoriented and conceded that she had difficulty working. Respondent introduced evidence in an attempt to establish that her poor job performance was caused by medical problems.

    
    

31. Under the Respondent's health care system, Respondent was required to obtain a referral for health care services from her primary physician who was, at the times pertinent hereto, Dr. Olive Chung-James.

    
    

32. Dr. Chung-James saw Respondent several times starting in February 1993, for various symptoms and illnesses. In May 1993, Dr. Chung-James, who had been treating Respondent for respiratory problems and vomiting, recommended that Respondent seek psychological counselling because she thought the Respondent was stressed out.

    
    

33. After the suspension of her employment in July 1993, Respondent met by coincidence a certified psychologist named Lani Kaskel. Respondent called Dr. Kaskel several times before she was able to arrange an appointment. Because Respondent had not been referred to Dr. Kaskel by Dr. Chung-James, the Respondent's health insurance did not pay for her visit to Dr. Kaskel.

    
    

34. When Dr. Kaskel examined the Respondent, the Respondent was in a weak condition, somewhat disoriented, and clearly depressed. Respondent was seeking help and appeared overwhelmed. Dr. Kaskel suggested to Respondent that she might have an organic feature to the depression she was experiencing and referred her to Luis Escovar, a clinical psychologist who had been approved by Respondent's insurance plan.

    
    

35. Respondent was referred to Dr. Kenneth Fischer, who is board certified in neurology by the American Board of Psychiatry and Neurology. Dr. Fischer's records reflects that Respondent presented herself with a history of personality disorder and headaches.

    
    

36. Dr. Fischer conducted a series of tests to determine if there was a physical cause for the headaches she was experiencing, including a Magnetic Resonance Imaging (MRI) test, which was abnormal. The MRI revealed an area of the brain with decreased density which was interpreted by the consulting radiologist to be a low-grade tumor.

    
    

37. Following his examination of the Respondent, Dr. Fischer was of the opinion that Respondent had either an ischemic process stroke or a brain tumor. His tests were inconclusive, and he could not testify that Respondent's poor performance and her failure to follow directives were attributable to organic causes.

    
    

38. Respondent testified that during the 1992-93 school year she got behind in her work and she had trouble finishing her work and the prescriptions mandated by the school administrators. She testified that she did not willfully fail to meet the performance expectations, but that she could not do so because she was ill.

    
    

39. Dr. Luis Escovar, a psychologist who treated the Respondent and who performed a series of psychological testing, expressed the opinion that on February 14, 1994, the Respondent was physically and mentally able to return to her employment as a classroom teacher.

40. Respondent asserts that Respondent's poor classroom performance was due to an illness and that she should have been placed on sick leave. Respondent's assertion is rejected for two reasons. First, the medical testimony is speculative and does not establish that Respondent's poor job performance and failure to follow directives were caused by a stroke or by a brain tumor. Second, while Respondent testified that she sought sick leave, she offered no evidence as to whom this request was made, the date the request was made, the duration of the leave requested, the manner in which the leave was requested, or any other circumstances of the request. In light of the many offers of assistance that were made to the Respondent, which she repeatedly declined, it is found that Respondent did not establish that she made a proper request for sick leave that was refused by the administrators of Palm Springs. 3/

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(l), Florida Statutes.

    
    

42. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the Specific Notice of Charges. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990), and Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990).

    
    

43. Because Respondent is on continuing contract, the Petitioner must have good cause to terminate her employment pursuant to Section 231.36(4)(c), Florida Statutes, which provides, in pertinent part, as follows:

    
    

    (c) . . . [A]ny member of the instructional staff . . . who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on . . . incompetency, gross insubordination, willful neglect of duty ...

    
    

44. The Specific Notice of Charges alleges there is just cause for Respondent's suspension and dismissal and that Respondent is guilty of incompetency and of gross insubordination and willful neglect of duty within the meaning of Section 231.36(4)(c), Florida Statutes.

    
    

45. Rule 6B-4.009, Florida Administrative Code, provides the following definitions that are pertinent to this proceeding:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . . Such judgment shall be based on a preponderance of the evidence showing the existence of one (1) or more of the following:

       1. 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 . . .

          * * *

          (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.

          
          

46. Petitioner established by a preponderance of the evidence that Respondent was guilty of incompetency within the meaning of Section 231.36(4)(c), Florida Statutes, by proving that she repeatedly failed to communicate with her students to the extent that she deprived them of a minimum educational experience.

    
    

47. Petitioner established by a preponderance of the evidence that Respondent was guilty of gross insubordination and willful neglect of duty within the meaning of Section 231.36(4)(c), Florida Statutes, by proving that she repeatedly failed to follow properly issued directives from the school administrators.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which adopts the

findings of fact contained herein and which terminates the Respondent's

continuing contract of employment.

DONE AND ENTERED this 28th day of July 1994 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 28th day of July 1994.

ENDNOTES

1/ All schools referred to in this Recommended Order are public schools over which Petitioner has authority.

2/ TADS is an observation based system employed by Petitioner to evaluate teacher performance and to assist a teacher in remedying an observed deficiency in particularized areas of classroom instruction. The observations are used in determining a teacher's annual evaluation.

3/ Respondent's rights to take sick leave are set out in the contract between Petitioner and the United Teachers of Dade (Respondent's Exhibit 1.)

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3964

The following rulings are made as to the proposed findings of fact submitted by the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 44, 45, 46, 48, 49, and 50 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 41, 42, 43, and 47 are subordinate to the findings made.

The following rulings are made as to the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 24 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 20 and 25 are rejected as being contrary to the findings made and to the conclusions reached.

3. The proposed findings of fact in paragraph 21 are rejected to the extent they conflict with the findings made.

4. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Luis M. Garcia, Esquire Dade County School Board

1450 Northeast 2nd Avenue, Suite 301

Miami, Florida 33132

William du Fresne, Esquire Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

Mr. Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast 2nd Avenue, #403

Miami, Florida 33132-1308

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: 93-003964

Orders for Case No: 93-003964