STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1539

)

JUDITH ZUCKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 7-9, 1998, and November 13, 1998, at Miami, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Joan Valdes, Esquire Valdes & Villaverde, P.A.

100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent's employment as a teacher with Petitioner should be terminated for

alleged willful neglect of duties and gross insubordination.

PRELIMINARY STATEMENT

By letter dated March 19, 1998, the Miami-Dade County School Board (Petitioner) notified Judith Zucker (Respondent), among other things, that Petitioner took action on March 18, 1998, to suspend her and initiate dismissal proceedings against her from all employment with Petitioner, effective March 18, 1998.

Petitioner's letter further notified Respondent, among other things, that Petitioner's action was based upon Respondent's willful neglect of duty and gross insubordination. By letter dated March 19, 1998, Respondent's counsel requested a hearing on Respondent's behalf. On March 30, 1998, this matter was referred to the Division of Administrative Hearings.

On April 24, 1998, Petitioner filed a two-count Notice of Specific Charges against Respondent. In Count I, Respondent was charged with willful neglect of duties; and in Count II, Respondent was charged with gross insubordination.

At hearing, Petitioner presented the testimony of 9 witnesses and entered 12 exhibits (Petitioner's Exhibits numbered 1-6, 8, 9, and 11-14) into evidence. Respondent testified in her own behalf and presented the testimony of 4 witnesses and entered

8 exhibits (Respondent's Exhibits numbered 1, 3, 8, 9, 10, 13, 22, and 23) into evidence. One joint exhibit was entered into evidence (Joint Exhibit numbered 1).

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set for more than 10 days following the filing of the transcript.

The Transcript consists of 4 volumes, and the last volume was filed on December 21, 1998. Petitioner timely filed its post- hearing submission on January 19, 1999. An extension of time was granted to Respondent for the filing of her post-hearing submission. Respondent timely filed her post-hearing submission on February 18, 1999.

On February 22, 1999, Petitioner filed a Motion to Strike Respondent's post-hearing submission. Petitioner alleges that Respondent requests the undersigned to make findings of fact and conclusions of law with reference to the Americans With Disabilities Act (ADA). During the hearing, the undersigned specifically pointed out that no authority was conferred upon the undersigned to make any ruling regarding the ADA. As to the ADA, Respondent's post-hearing submission will not be stricken; however, no consideration will be given and no rulings will be made regarding Respondent's circumstances as they relate to the ADA.

Petitioner further alleges in its motion that Respondent fails to cite to the Transcript in support of some of her proposed findings of fact; states some findings of fact for which no evidence was presented at hearing; and misstates some evidence presented at hearing. Petitioner's allegations are meritorious; however, the undersigned will not strike Respondent's post-

hearing submission. Instead, no consideration will be given to Respondent's proposed findings of fact which fall within the confines of Petitioner's aforementioned allegations.

The post-hearing submissions, subject to the above rulings, have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the district of Miami-Dade County, Florida.

2. Judith Zucker (Respondent) began her employment with Petitioner, as a teacher, in 1968 and continued her employment with Petitioner until 1972. She began her employment with Petitioner again in 1989.

3. Respondent holds a teacher certification in elementary education. She is also certified to teach the learning disabled and mentally handicapped.

4. At all times material hereto, Respondent was employed by Petitioner as a teacher, assigned to Little River Elementary School (Little River), Citrus Grove Elementary School (Citrus Grove), and Miami Jackson Senior High School (Miami Jackson).

   Little River Elementary School

   
   

5. In August 1989, Respondent resumed teaching with Petitioner. She was employed at Little River pursuant to a

   continuing contract of employment.

   
   

6. On January 8, 1991, Respondent suffered injuries to her neck and spine when she attempted to break-up a fight between two students. Despite her injury, she immediately returned to work, not losing any time from work.

7. In November 1994, Respondent was injured again. While walking down the hall of the school, a student, for whom she was not responsible, was hanging on a door. The student pushed himself off the door and fell on top of Respondent onto a cement floor. As a result, Respondent's original injury was aggravated.

8. During the 1994-95 and 1995-96 school years, Respondent was a Title I tutor. She tutored three to eight students at a time in reading.

9. During the 1996-97 school year, the reading program changed. For this school year, Little River, along with some other schools, was placed on Florida's critically low school list. Petitioner initiated a program called Operation Safety Net in which schools on the critically low list began using the Successful for All/Roots and Wings program (Success for All Reading Program). The Success for All Reading Program was for students who were critically deficient in reading. Little River and Petitioner's other critically low schools began using the Success for All Reading Program for the 1996-97 school year.

10. In the Success for All Reading Program a tutor had a group of 18 to 20 students for 90 minutes in the morning. For

    the rest of the day, the tutor worked one-on-one with first grade students.

11. Respondent was not assigned to the Success for All Reading Program at the beginning of the 1996-97 school year. Respondent requested her principal to assign her to the Success for All Reading Program due to her medical condition resulting from the injuries to her neck and spine for which she was still undergoing physical therapy. The principal agreed to assign Respondent to the Success for All Reading Program because the principal wanted to make sure that Respondent was provided with the opportunity and the time to attend therapy.

12. Respondent was assigned to the Success for All Reading Program with a modification. Respondent was allowed to assist other tutors with testing and was working in groups of two to four students, significantly smaller than the regular groups of

    18 to 20 students. Using the smaller groups for Respondent caused the other morning groups to become even larger. At the time that the principal made the assignment with the modification, the principal expected the duration of the assignment to be short, but the assignment spanned the entire school year. Having groups expanding beyond the 18 to 20 students for the entire school year created a hardship in that it was counter-productive for the critically deficient readers.

13. In the fall of 1996, Respondent was again injured. This time, Respondent was injured by a student to whom she was

    tutoring one-on-one. Respondent did not lose any work as a result of the injury she sustained.

14. Respondent had now been injured by students at Little River on three separate occasions: January 8, 1991, November 1994, and the fall of 1996. Despite the injuries that she sustained, she immediately returned to work after each occurrence without any loss of time.

15. At the end of a school year, teachers indicate what they would prefer to do during the following school year. In May or June 1997, the principal of Little River advised Respondent that she would be assigned to teach a regular class, a third grade class, for the 1997-98 school year.

16. Respondent sought a transfer from Little River in August 1997. No transfer occurred.

17. When Respondent returned to Little River in August 1997 for the 1997-98 school year, Respondent informed the principal that she was still in physical therapy; that she was unable to write on the chalkboard because to do so caused her to shake; and that she was, therefore, unable to return to a regular classroom. Respondent requested a return to tutoring. The principal informed Respondent that the tutors had already been assigned and that she (Respondent) was expected to return to a regular classroom. However, for the first two weeks of school, the principal allowed Respondent to tutor.

18. The principal contacted Petitioner's Office of Risk Management1 to determine Respondent's status as to whether she was able to return to a regular classroom. Risk Management advised the principal that Respondent was cleared to return to her regular duties, to return to a regular classroom.

19. On September 19, 1997, the principal explained to Respondent that, according to Risk Management, she was cleared to return to her regular duties and that she would be returning to a regular third grade classroom. The third grade classroom would contain no more than 29 to 33 students. Respondent informed the principal that she (Respondent) was not able to return to a regular classroom and that her doctor would have to contact Risk Management.

20. On September 23, 1997, the principal again contacted Risk Management which again informed the principal that Respondent was cleared to return to her regular duties. The principal advised Respondent of the information that she had obtained from Risk Management. Respondent again informed the principal that she was unable to return to a regular classroom. Risk Management had also advised the principal that, if Respondent continued to insist that she was unable to return to a regular classroom, the principal should direct Respondent to leave the school's campus. The principal did as Risk Management advised and directed Respondent to leave the school's campus.

    Respondent complied with the principal's directive and left the campus of Little River.

21. The Executive Director of Risk Management (Executive Director) had advised the principal to direct Respondent to leave the school's campus if Respondent insisted that she could not return to a regular classroom. He advised the principal to direct Respondent to leave the school's campus because of Respondent's medical condition. The Executive Director had reviewed Respondent's file and had become aware of a letter dated September 3, 1997, from Dr. Raul Grosz, Respondent's authorized2 neurologist. The letter stated in pertinent part:

    She [Respondent] has at this time chronic persistent [sic] and discomfort. I am recommending that she be placed in a non- threatening environment in which she does not have to move furniture or lift furniture whatsoever. I also feel that she is unable to carry a full class-load at this time.

    
    

    As a result of the letter, the Executive Director authorized the payment of workers' compensation benefits from the date that Respondent was directed to leave Little River's campus by the principal.

22. Even though Dr. Grosz opined that Respondent was "unable to carry a full class-load," he did not state the number of students as to what represented a full class-load. However, Dr. Grosz considered a full class-load to consist of a large group of students who were not well-behaved and who were potentially dangerous.

23. Dr. Grosz did not inform Respondent as to what he considered to be a full class-load.

24. There was no neurological basis for restricting Respondent to a non-threatening environment or a reduced class size. Respondent requested Dr. Grosz to add the restrictions. Respondent also expressed her desire to be in a non-threatening environment. Respondent's requests seemed reasonable to

    Dr. Grosz and he attempts to accommodate his patients' subjective feelings, so Dr. Grosz included the restrictions in his letter.

    It was Dr. Gorsz's intent that Respondent and Petitioner attempt to reach a mutually acceptable solution and that Petitioner would provide what it determined was appropriate.

25. As of September 19, 1997, Respondent had exhausted all of her available sick and personal leave. Petitioner and the United Teachers of Dade (UTD) have entered into a collective bargaining agreement (UTD Contract). The UTD Contract provides generous, extensive leave provisions. Respondent never applied for any type of leave, including leave pursuant to the UTD Contract.

26. The Executive Director was authorized to direct a teacher to a work assignment. In determining a work assignment for Respondent, the Executive Director sought assistance from and relied upon Petitioner's Instructional Staffing Department to locate a position for Respondent which would meet her medical restrictions.

    Citrus Grove Elementary School

    
    

27. The Director of Instructional Staffing informed the Executive Director that a varying exceptionalities (VE) position in special education was available at Citrus Grove.

28. A VE teacher teaches a group of students who have different exceptionalities. The VE teacher may simultaneously teach the students with different exceptionalities in the same class or the teacher may teach the students with one exceptionality during the school day at one time and may teach other students with a different exceptionality during the same school day at another time. VE teaching is used for mildly handicapped students.

29. By letter dated October 7, 1997, the Executive Director informed Respondent that a VE position was available at Citrus Grove and that the VE position was within her certification and met her medical restrictions. He also indicated that the position was an appropriate accommodation for Respondent. Moreover, the Executive Director directed Respondent to report to Citrus Grove immediately and to call the principal at Citrus Grove for further reporting instructions.

30. Respondent failed to call the principal. She also failed to report to Citrus Grove.

31. Respondent decided, without making any personal investigation, that the VE position at Citrus Grove was not appropriate and was unreasonable. Respondent did not believe

    that she was physically capable of performing as a VE teacher at Citrus Grove.

32. Respondent is in pain daily. She wears a Tens Unit to short-circuit some of the pain. Respondent expresses being afraid of being in groups wherein she may be bumped which would worsen her condition.

33. However, Respondent's authorized neurologist, Dr. Grosz has no concern regarding physical contact by bumping causing further neurological damage or problems. He has more concern regarding further neurological damage or problems caused by Respondent being involved in a high-speed motor vehicle accident.

34. Respondent did not observe the placement or inquire about the profiles of the students who she was going to teach. The composition of the VE class, as to students, at Citrus Grove was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with the students.

35. The UTD Contract provides for the use of the Safe Physical Management (SPM) program, which is the use of physical restraints for severely disabled students. Teachers, who are in self-contained programs for severely emotionally disturbed students and autistic students, receive training in techniques to contain highly disruptive students under unusual circumstances.

    The techniques are used to prevent injuries to persons, including the student, and damage to property. Before SPM is used, Petitioner's Multi-Disciplinary Team must recommend its use and the use of SPM must be documented on the student's Individualized Education Program (IEP).

36. One student in Respondent's assigned class had an IEP which approved SPM. However, based upon the student's progress, it was unlikely that SPM would have been needed.

37. Moreover, SPM is not used in VE classes at Citrus Grove; mildly handicapped students, not volatile students, are placed in the VE classes.

38. Dr. Grosz opined that Respondent could teach a class of

    
    

    25 to 30 well-behaved students. The VE classes at Citrus Grove were not full-load classes. The VE classes consisted of 7 to 10 mildly disabled students at any one time; whereas, the regular classes consisted of between 28 and 39 students. Elementary VE classes contained no more than 12 to 15 students. The number of students in VE classes at Citrus Grove were smaller than VE classes throughout Petitioner's district.

39. Respondent also erroneously relied upon Dr. Grosz's opinion that she was unable to teach a full class-load. What Respondent considered a full class-load and what Dr. Grosz considered a full class-load were not the same. Pursuant to what Dr. Grosz considered a full class-load, Respondent would have been able to accept the VE position at Citrus Grove.

40. Respondent would have been the third VE teacher at Citrus Grove. The VE students were all in one room separated by a partition. Respondent's class would have been on one side of the partition and one VE teacher would have been in the class with Respondent. The other VE teacher and the other VE students would have been on the other side of he partition.

41. Citrus Grove was a safe, non-threatening environment. The needs of the VE students at Citrus Grove were more an educational concern than emotional, and the VE students were well-behaved.

42. As to Respondent being injured at Citrus Grove in the VE position, such an occurrence was unlikely.

43. Respondent would not have been required to lift or move any furniture or any heavy items at Citrus Grove.

44. Respondent was qualified to teach the VE class at Citrus Grove. The Citrus Grove assignment met Respondent's medical restrictions.

45. The assignment of Respondent to Citrus Grove was reasonable. Respondent's refusal of the Citrus Grove assignment was unreasonable and unjustified.

46. Approximately one week after Respondent was assigned to Citrus Grove, Respondent, on October 13, 1997, presented to

    Dr. Grosz for an examination. Respondent did not inform

    
    

    Dr. Grosz of the assignment at Citrus Grove. Informing Dr. Grosz of the assignment would have provided Dr. Gorsz with an

    opportunity to explain to Respondent what he meant by his opinion.

47. Respondent did not also inform Dr. Sanford Jacobson, her authorized psychiatrist, of the Citrus Grove assignment when she presented to him for a psychiatric evaluation on October 14, 1997. Dr. Jacobson prepared a report of the evaluation dated October 16, 1997.3 In the "Summary and Conclusions" section of his report, Dr. Jacobson states, among other things, the following:

    There have been three incidents which have resulted in injuries as described by

    Mrs. Zucker [Respondent]. While some of them may have been somewhat surprising, difficult to manage, and distressing, I would not think that they are the kind of injuries that one would see as causing a Post-Traumatic Stress Disorder. . . . The most prominent symptoms are depressive symptoms.

    Clinical diagnosis at present is that of:

    
    

    Axis I: Mood disorder associated with cervical disc disease and stenosis with depressive-like episode.

    
    

    * * *

    
    

    It would appear that her depression is related to the injuries. . . . At this time I do not believe she can resume full classroom duties.

    
    

    In essence, Dr. Jacobson's diagnosis was that Respondent was suffering from depression related to her pain and discomfort from her physical injury.

48. Even though Dr. Jacobson opined that Respondent could not resume "full classroom duties," he did not state the number

    of students as to what he considered a full classroom. However, Dr. Jacobson considered a full classroom to consist of approximately 25 to 30 students or more.

49. As a result of Respondent not reporting to Citrus Grove, day-to-day substitutes filled her position. The needs of the VE students were not met with such an arrangement.

    Miami Jackson Senior High School

    
    

50. On or about October 15, 1997, one of Respondent's physicians had placed Respondent on a no-work status. Subsequently, on November 10, 1997, Dr. Grosz returned Respondent to work but with restrictions. Dr. Grosz states in his report dated November 10, 1997, among other things, the following:

    She [Respondent] remains able to perform at light duty status with no lifting of furniture allowed and I will defer to psychiatry in terms of her emotional complaints.

    
    

51. The Executive Director consulted again with Petitioner's Instructional Staffing to locate a position for Respondent. Instructional Staffing informed him of a VE position at Miami Jackson.

52. On December 3, 1997, the Executive Director informed Respondent that a VE position at Miami Jackson was within her certification and met her medical needs. He directed Respondent to report to Miami Jackson. The Executive Director also directed Respondent to call the principal at Miami Jackson for further reporting instructions.

53. Respondent failed to report to Miami Jackson. She also failed to call the principal at Miami Jackson.

54. Respondent decided, without making any personal investigation, that the VE position at Miami Jackson was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Miami Jackson.

55. Respondent did not observe the placement or inquire about the profiles of the students whom she was going to teach. The composition of the VE class, as to students, at Miami Jackson was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with students.

56. The VE classes at Miami Jackson were not full-load classes. The regular classes at Miami Jackson averaged approximately 35 students; whereas, the VE classes consisted of

    14 to 21 students per class period in Respondent's proposed classes.

57. The students in the VE classes were mildly disabled, with the majority of the students being learning disabled and a few being emotionally handicapped and a few educationally mentally handicapped. Many of the students were being

    mainstreamed into the regular school setting. A majority of the students were on track for a standard diploma.

58. Three students in Respondent's proposed class at Miami Jackson had IEPs which approved SPM. The students would have been in Respondent's proposed class in 1998. The students' prior IEPs had approved SPM and the SPM was carried over to Miami Jackson. However, based upon the students' progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Miami Jackson; SPM is only used in severly emotionally disabled classes at Miami Jackson.

59. Miami Jackson was a safe, non-threatening environment.

    
    

60. Respondent would not have been required to lift or move any furniture or any heavy items at Miami Jackson.

61. Respondent was qualified to teach the VE class at Miami Jackson.

62. However, the Miami Jackson assignment failed to meet Respondent's medical restrictions. The Miami Jackson assignment met Dr. Grosz's medical restrictions; but, it failed to meet

    Dr. Jacobson's medical restrictions.

    
    

63. Dr. Jacobson did not state in his report the size of the class that he recommended that Respondent teach. Nor did he recommend to Respondent the size of class that she should teach. At hearing, Dr. Jacobson opined that he would recommend that Respondent teach a class with 7 to 10 students; however, he would not recommend that Respondent teach a class with 14 to 21

    students. Respondent's proposed VE classes at Miami Jackson consisted of 14 to 21 students.

64. The assignment of Respondent to Miami Jackson was unreasonable. Respondent's refusal of the assignment to Miami Jackson was reasonable and justified. It matters not that Respondent was unaware of the size of class recommended by

    Dr. Jacobson; it is sufficient that the assignment failed to meet his medical restrictions. Even though Respondent did not know the size of class to which Dr. Jacobson was referring, she relied upon his report, as well as Dr. Grosz's opinion, in refusing the assignment to Miami Jackson.

65. As a result of Respondent not reporting to Miami Jackson, day-to-day substitutes filled her position until a permanent teacher could be assigned.

66. Dr. Grosz examined Respondent again on December 12, 1997. Respondent did not advise him of her assignment to Miami Jackson.

67. Because Respondent had failed to report to Citrus Grove and to Miami Jackson as directed, the Executive Director turned Respondent's case over to Petitioner's Office of Professional Standards (OPS).

68. By letter dated January 26, 1998, OPS advised Respondent, among other things, that she had been absent without authorized leave and that such absence constituted willful neglect of duty and subjected her employment to termination. OPS

    also requested that Respondent provide a written request within

    
    

    10 working days if she wanted a review of her situation.

    
    

69. Respondent failed to reply to OPS' letter. However, Respondent's counsel for workers' compensation responded. The response from Respondent's counsel indicated that Petitioner was aware why Respondent was not working, but his response failed to specifically address the assignments to Citrus Grove and to Miami Jackson.

70. Petitioner took action on March 18, 1998, to suspend Respondent and dismiss her from employment. According to Petitioner's computerized attendance records, at that time Respondent had been absent without authorized leave since September 19, 1997.

71. From September 19, 1997, to October 7, 1997, Respondent was not absent without authorization. On September 19, 1997, Respondent informed the principal of Little River that she was unable to teach the regular third grade class. Subsequently, on September 23, 1997, the principal directed Respondent to leave Little River, upon the advice of the Executive Director, and the Executive Director authorized Respondent to receive workers' compensation benefits retroactive to the date that she was directed to leave. Moreover, Respondent was not directed to report to Citrus Grove until October 7, 1997.

    CONCLUSIONS OF LAW

    
    

72. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

73. Petitioner has the burden of proof by a preponderance of the evidence. Allen v. School Board of Dade County, 571

    So. 2d 568, 569 (Fla. 3d DCA 1990).

    
    

74. Section 231.36, Florida Statutes, provides in pertinent part:

    (4)(c) Any 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 or her must be based on . . . gross insubordination, willful neglect of duty . . . . Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he or she may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his or her contract of employment shall be thereby canceled. Any such decision adverse to the employee may be appealed by the employee pursuant to s.

    120.68, provided such appeal is filed within

    30 days after the decision of the school board.

75. Rule 6B-4.009, Florida Administrative Code, provides in pertinent part:

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    (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.

    
    

76. Section 231.09, Florida Statutes, provides in pertinent part:

    Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

77. Petitioner's Rule 6Gx13-4E1.011, provides:

    
    

    No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without such prior approval, shall be deemed to have been willfully absent without leave.

78. Section 231.44, Florida Statutes, provides:

    
    

    Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board.

79. Petitioner failed to demonstrate by a preponderance of the evidence that Respondent committed gross insubordination.

80. Respondent was directed to report to Citrus Grove and to call the principal at Citrus Grove for further reporting requirements. The evidence established that the directive was given by an administrator with proper authority, that the directive was a direct order, and that the directive was reasonable. Moreover, the evidence established that Respondent refused to obey the directive.

81. Respondent was subsequently directed to report to Miami Jackson and to call the principal at Miami Jackson for further reporting requirements. The evidence established that the directive for Miami Jackson was given by an administrator with proper authority, that the directive was a direct order, and that Respondent refused to obey the directive; however, the evidence failed to establish that the directive was reasonable. Moreover, the evidence failed to establish a constant or continuing intentional refusal to obey the directive for Miami Jackson.

82. Petitioner demonstrated by a preponderance of the evidence that Respondent committed willful neglect of duties. The evidence established that Respondent unreasonably refused to report to Citrus Grove and was not granted leave beginning October 7, 1997. The evidence further established that Respondent was receiving workers' compensation up to her assignment to Citrus Grove on October 7, 1997. The evidence was

    insufficient to establish that Respondent's workers' compensation continued beyond October 7, 1997. However, the evidence demonstrates that Respondent reasonably refused to report to Miami Jackson on December 3, 1997, at which time Respondent's leave options should have been discussed. Consequently, Respondent's unauthorized absence from her assigned workplace occurred from October 7, 1997, to December 2, 1997, and constituted willful absence from duty without leave; Respondent, therefore, committed willful neglect of duties. Section 231.44, Florida Statutes; School Board of Collier County v. Steele, 348 So. 2d 1166, 1168 (Fla. 1st DCA 1977).

83. Moreover, the evidence established that, even after Respondent failed to report for the position at Citrus Grove, the Executive Director assigned Respondent to a second school, Miami Jackson, for another position. Not until Respondent failed to report to Miami Jackson did the Executive Director contact OPS. As Respondent's refusal to report to Miami Jackson was reasonable, Petitioner should locate another position commensurate with Respondent's qualifications and medical restrictions. Suspension without pay is warranted, but dismissal is not warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Judith Tucker without pay, but not dismissing her from employment, and reinstating Judith Tucker under the terms and conditions deemed appropriate.

DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.

ENDNOTES

1/ Petitioner's Office of Risk Management was involved because Respondent had requested workers' compensation.

2/ An "authorized" physician is a physician approved by Petitioner.

3/ In forming his opinion and recommendation, Dr. Jacobson considered the opinion of Respondent's personal psychiatrist, Dr. I. Jack Abramson, who was not an authorized physician. Dr. Jacobson's opinion and recommendation were not consistent with those of Dr. Abramson, and Dr. Jacobson did not place a great

deal of weight on the opinion and recommendation of Dr. Abramson. Considering the proof required, the opinion and recommendation of Dr. Jacobson is more credible.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Joan Valdes, Esquire Valdes & Villaverde, P.A.

100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134

Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

Roger C. Cuevas, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Tom Gallagher Commissioner of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-001539

Orders for Case No: 98-001539