STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 01-2579
)
SUSAN L. DUERSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 9, 2002, in Miami, Florida.
APPEARANCES
For Petitioner: Luis M. Garcia, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Susan L. Duerson, pro se
15601 Southwest 137th Avenue, No. 306
Miami, Florida 33177 STATEMENT OF THE ISSUE
The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against her, and, if so, what disciplinary action should be taken against her, if any.
PRELIMINARY STATEMENT
By correspondence dated June 21, 2001, Petitioner Miami- Dade County School Board notified Respondent Susan L. Duerson that it was suspending her from her employment and initiating dismissal proceedings against her, and Respondent timely requested an evidentiary proceeding regarding that preliminary decision. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding, and a Notice of Specific Charges was thereafter filed.
Petitioner presented the testimony of Dr. Alberto T. Fernandez, Gwendolyn J. Kidney, Susan E. Rothstein,
Latanya Stevenson, Dr. Donna A. Riley, and Virginia M. Bradford. Respondent Susan L. Duerson testified on her own behalf and presented the testimony of Marsha Phillips Black. Additionally, Petitioner's Exhibits numbered 6-46 and 48-52 were admitted in evidence, and Petitioner's request for official recognition of certain statutes and rules was granted.
Petitioner filed a proposed recommended order after the conclusion of the evidentiary proceeding. That document has been considered in the entry of this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent Susan L. Duerson was employed by Petitioner Miami-Dade County School
Board as a School Clerk II, a position classified as an educational support employee pursuant to Article XXI, Section 3, of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade (the collective bargaining agreement).
Respondent was initially employed by the School Board on November 15, 1996, as a part-time "skilled clerical" employee and assigned to Homestead Middle School. On November 10, 1997, Dr. Antonio T. Fernandez, the principal of Neva King Cooper Educational Center (hereinafter "NKC"), hired Respondent on a full-time basis as a School Clerk II.
NKC is a special education center which serves profoundly mentally handicapped students. Because of their condition, many of the students at NKC are medically-fragile and require specialized attention.
As a School Clerk II, Respondent was required, among other things, to maintain a wide variety of documents, forms, reports, evaluations, and business correspondence. As part of her duties, she was also responsible for maintaining attendance records; scheduling meetings, conferences and appointments between parents and instructional staff; and arranging bus transportation for the students at her school site.
Approximately two months after being hired at NKC, Respondent suffered a stroke while hospitalized for kidney
stones. From January 12, 1998, through June 19, 1998, Respondent was on medical leave due to a variety of health problems. Although Respondent was not eligible for an extended leave of absence due to her brief employment at NKC prior to her stroke, Dr. Fernandez, along with district administrators, approved Respondent's request for an extended leave of absence.
On April 14, 1998, Respondent's treating physician notified Petitioner's Office of Professional Standards that Respondent was capable of performing most of her duties, but that as a result of her stroke, Respondent could not climb, could not grasp, and did not have finger dexterity of her right hand. Respondent also had difficulty remembering the daily tasks and duties that she was required to perform.
On June 20, 1998, Respondent returned from her leave of absence and began working at NKC.
Because of her physical limitations resulting from her stroke, Respondent sought accommodations from Petitioner in order to fulfill the essential requirements of her job. These requests were presented to Petitioner's District Consultative Committee. The Committee made recommendations in an attempt to provide Respondent with reasonable accommodations.
On October 28, 1998, Petitioner approved several accommodations to assist Respondent in fulfilling her responsibilities, including providing a "Wanchik's writer," a
"slip-on typing aid," a "day-timer," and a hand-held tape recorder. The tape recorder was provided to Respondent so that she could accurately copy messages for their intended recipients and track her assignments as Respondent frequently was unable to remember them. Respondent was given written instructions for assignments that were not routine in nature, was given the assistance of another employee in removing and replacing files for Respondent's use, and was allowed to leave work early three times a week so that she could attend physical therapy.
Respondent's work performance, upon returning from her leave of absence and despite the accommodations provided to her, was unsatisfactory. Assignments were not completed in a timely fashion and were not accurately documented. For example, notices to parents were sent late and with the wrong student's information on them.
On December 14, 1998, almost six months after returning from her leave of absence, Respondent was formally observed by her principal. Her work was found to be deficient in the areas of knowledge, quality of work, efficiency, dependability, judgment, attendance, and punctuality. During the December 14 observation, it was noted that Respondent failed to timely schedule conferences, failed to complete assigned tasks, and was unable to correctly process and prepare records required by her work site.
Respondent's work was also found to be deficient with respect to her attendance data collection duties. Schools are required by law to maintain accurate attendance records. When they fail to do so, a school can loose funding. Due to Respondent's inability to maintain accurate attendance records, NKC lost funding for some of its programs.
Respondent was also found to have problems correctly scheduling transportation for some of the students at NKC. At times, students would not be picked up as the necessary transportation was not requested by Respondent although she was required to do so.
Respondent also had difficulty maintaining accurate records for students in the Exceptional Student Education program, particularly with regard to scheduling meetings with parents, staff members, and psychologists.
Due to her unsatisfactory rating on December 14, 1998, Respondent was issued an interim evaluation which rated her as unsatisfactory for the 1998-99 school year.
On January 11, 1999, a conference-for-the-record was held with Respondent to address her non-compliance with site directives, her unsatisfactory interim evaluation, her prescription for improvement of those deficiencies noted in the interim evaluation, and her future employment status with
Petitioner. She was informed that her failure to correct those deficiencies would result in disciplinary action.
On April 22, 1999, another conference-for-the-record was held with Respondent to address her non-compliance with site directives and to review her performance to date, together with the status of her prescription and her future employment. She was advised of her continuing failure to complete her duties in a satisfactory and timely manner.
Respondent was issued a new prescription for improvement of her performance, which was based upon her supervisor's observations of her performance since Respondent's prior formal observation on December 4, 1998. She was advised that the prescriptive activities assigned to her must be completed by the agreed-upon deadlines and that her failure to remedy her deficiencies would lead to disciplinary action, including dismissal.
By the time of the April 22 conference, Respondent had been working at NKC for ten months, exclusive of the period of time that she had been on a leave of absence. Nonetheless, she was still exhibiting the same or similar deficiencies that had been noted in her first evaluation.
After student records could not be located at the school due to Respondent having taken them home, she was issued a written directive on May 10, 1999, ordering her not to remove
permanent student records from the school site. Respondent had previously been directed not to take student records to her home but had disregarded that directive. Accordingly, the May 10 directive advised Respondent that failure to comply with the directive again would be considered an act of insubordination and might lead to further disciplinary action.
On May 11, 1999, Respondent was reminded of the accommodations that had been provided her in order that she could perform the duties of her position in an effective manner. Although Respondent was allowed to leave early to attend physical therapy sessions and was provided the assistance of office personnel in removing and replacing files, her supervisor noted that Respondent--of her own volition--had not taken advantage of many of the accommodations provided by her work site. Respondent admitted that she had not taken the adaptive devices that had been purchased as part of her accommodations to her physical therapist, who was to have these devices adjusted so that they fit her properly. Since Respondent's performance had not improved, and since Respondent repeatedly made the same mistakes, her principal urged her to take advantage of the accommodations provided her.
After Respondent's excessive absenteeism began to have a detrimental effect on her work, on May 21, 1999, Respondent was issued a written directive advising her of her failure to
maintain appropriate attendance and requiring Respondent to notify her work site of her employment intentions, i.e., whether Respondent was going to return to work or take another leave of absence. As of that date, she had accumulated over forty absences.
On May 25, 1999, Respondent met with the principal and requested a second leave of absence. She and her doctor believed that she needed to take a leave of absence until
May 10, 2000, due to the alleged stress brought on by her duties.
Respondent was still on prescription for improvement of her performance at the time she took a second medical leave of absence effective from May 10, 1999, through May 9, 2000.
On May 9, 2000, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her medical fitness to return to duty, to review her employment history, and to address her future employment status with Petitioner. Due to her prior medical history, including her having fallen at her work site on two occasions, she was required to show that she was medically fit to return to her regular duties.
At the May 9 conference, Respondent's medical fitness was addressed. Respondent's doctor had cleared her to return to work and advised that Respondent's only limitation was that she
could only type with one hand on a left-handed keyboard. The Office of Professional Standards cleared Respondent to return to work.
At the conference, Respondent was advised that her prescriptive status would be removed so that she could start anew but that her performance would continue to be monitored throughout the school year. She was directed to maintain regular attendance and was told that all intended absences must be communicated to her principal or his secretary. She was also advised that all absences for illness must be documented by her treating physician. She was informed that her non-compliance with the directives issued at this conference would lead to disciplinary action.
On June 8, 2000, approximately a month after she returned from her second leave of absence, a meeting was held with Respondent to address numerous errors she committed while performing her daily tasks. She was advised that she had lost certain records and had failed to properly notify parents of conferences involving students in the exceptional student education program. She was reminded that her failure to properly notice these conferences could expose the school district to liability. In order to assist Respondent to improve her performance and to insure that errors would not continue to
occur, she was directed to meet with the assistant principal on a daily basis.
On June 20, 2000, Respondent was provided with additional accommodations to assist her in performing her duties. She was advised that a left-handed keyboard would be purchased for her, that she would continue to be provided the assistance of another employee to remove and replace files for her, that she was to continue tape-recording her assignments as a reminder to herself of the tasks that she must complete, and that she would continue to receive written instructions with regard to non-routine assignments.
On July 14, 2000, another tape recorder was purchased for Respondent since the one previously issued to her had been lost. She was also issued a new day-timer calendar to keep track of her daily assignments.
Over a year after her previous evaluation, on July 27, 2000, Respondent was formally evaluated and was again found to be unsatisfactory in the categories of quality of work, efficiency, and dependability. She was issued a new prescription to assist her in improving her performance. She was required to keep a log of her files since she continued to lose documents and had, by this point, lost a complete file.
As a result of her unsatisfactory evaluation, on July 27, 2000, a conference-for-the-record was held with
Respondent to address her performance, her interim evaluation, and her future employment with Petitioner. She was advised of her continued inability to perform her daily duties and that her failure to improve would lead to disciplinary action.
On September 20, 2000, a conference-for-the-record was held to address Respondent's performance, to review the prescriptive activities assigned to her during the conference held on July 27, and to address her future employment. By the time of that conference, more than four months after Respondent had returned from her second leave of absence, her work performance had not improved.
During the September 20 conference, Respondent was advised of her continuing failure to correctly input student attendance information and to provide adequate and timely notice of parent conferences. She was also reminded of the importance of using her school-issued tape recorder in order for her to minimize mistakes and to accurately process information. In order to assist her in improving her performance and in completing her prescriptive activities, the deadline for completing the prescription was extended to October 27, 2000.
On October 23, 2000, Respondent was given written notice of her repeated failure to properly send parental notices of conferences and "staffings." She was directed to rectify these deficiencies and to continue to meet with the assistant
principal for further assistance. She was advised that if she needed additional assistance, it would be provided to her.
On November 16, 2000, another conference-for-the- record was held with Respondent to address her performance and to review the status of the prescription that had been issued at the conference-for-the-record held on July 27. She was advised of her continued deficiencies, which included incorrectly inputting attendance dates, improperly responding to administrative requests, improperly dating time-sensitive material, and failing to give adequate parental notice for school "staffings." She was also issued an addendum to the
July 27 prescription.
Respondent was further advised that she had failed to complete the prescriptive activities that had been previously issued but that in another effort to assist her, the deadline for completing those activities would be extended to January 12, 2001. Respondent was further advised that her failure to overcome her performance deficiencies would lead to disciplinary action. Respondent acknowledged the support and assistance that the office staff had given her and thanked the principal for all of his support.
On December 1, 2000, Respondent, after failing to provide timely notice of a conference with a parent and failing to provide notice of a meeting with another parent, was again
reminded by the assistant principal that part of her duties was to provide adequate and timely notice of staff conferences with parents.
On December 12, 2000, Respondent was notified in writing that she had failed to complete the prescriptive activities that had been assigned to her on July 27 and amended on November 16. Among other things, Respondent had failed to keep a log of her files and had failed to notify staff and parents of scheduled meetings. Respondent had still failed to make use of her tape recorder.
On January 16, 2001, a conference-for-the-record was held with Respondent to address her performance and to review the status of her prescriptive activities and her future employment status. She was advised that her performance had not improved and that her repeated failure to complete her prescriptive activities despite three extensions of time was considered insubordination. Respondent was also advised that her failure to improve her overall performance mandated a recommendation for disciplinary action, which could include dismissal.
On March 8, 2001, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her performance, her non-compliance with site directives, and her professional responsibilities. She was
advised that although she had been on prescription for a significant portion of the year, she had failed to correct her deficiencies and improve her performance. As a result of her continuing unsatisfactory performance, she was advised that a recommendation for disciplinary action, including dismissal, would be submitted to the School Board.
On March 22, 2001, Respondent's principal recommended that due to her inability to complete her prescriptive activities or to correct her performance deficiencies in spite of continuous support and assistance at the work site, her employment by Petitioner should be terminated.
After she continued to accrue excessive and unauthorized absences, on May 9, 2001, Respondent was again reminded of prior directives that she report to work on a regular basis; that if she was to be absent, she needed to communicate that fact to school administrators; and that Respondent provide documentation for any absence alleged to be related to illness. She was also advised that her excessive absenteeism and her repeated failure to comply with administrative directives regarding her absences would lead to disciplinary action, including dismissal.
On June 20, 2001, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and initiate dismissal proceedings against Respondent for just cause.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.569 and 120.57(1), Florida Statutes.
The Notice of Specific Charges filed in this cause contains three Counts. Petitioner has met its burden of proving that Respondent is guilty of the allegations contained in the Notice of Specific Charges.
Section 230.23(5)(f), Florida Statutes, authorizes the School Board to dismiss employees of the school system, including non-instructional employees. Respondent, as an educational support employee, is such a non-instructional employee. Section 231.3605(1)(a), Florida Statutes. The School Board is authorized to terminate Respondent's employment as an educational support employee for reasons stated in the collective bargaining agreement. Section 231.3605(2)(b), Florida Statutes.
Article XXI, Section 3, of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade is entitled "Procedures for Continued Employment of Educational Support Personnel," and provides that upon completion of a probationary period, an employee's employment shall continue unless the employee is terminated for just cause. That Section further provides that just cause includes incompetency, gross
insubordination, and willful neglect of duty as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Count I of the Notice of Specific Charges alleges that Respondent is guilty of incompetency. Rule 6B-4.009(1) defines incompetency as an inability or lack of fitness to discharge duties due to inefficiency or incapacity. Inefficiency includes a repeated failure to perform duties prescribed by law. Rule 6B-4.009(1)(a). Incapacity includes lack of emotional stability and lack of adequate physical ability. Rule 6B-4.009(1)(b). Respondent is guilty of incompetency due to both inefficiency and incapacity. She repeatedly failed to perform her required duties despite all reasonable accommodations having been provided to her. Without the use of the accommodations provided to her, Respondent lacked the physical ability to perform many of her duties; yet, she failed on a continuing basis to use those assistive devices provided to her.
Count II of the Notice of Specific Charges alleges that Respondent is guilty of gross insubordination or willful neglect of duty. Rule 6B-4.009(4), Florida Administrative Code, defines those terms as a continuing or constant intentional refusal to obey direct orders, which are reasonable in nature and given with proper authority. Respondent is guilty of gross insubordination or willful neglect of duty by, for example, her failure to use the assistance provided to her, her failure to
correctly and properly prepare and mail notices of conferences, and her failure to prepare and use a log of her files, after repeatedly being directed to do so by her principal.
Conversely, she removed student files from the school site after being directed not to do so.
Count III of the Notice of Specific Charges alleges that Respondent is guilty of excessive absenteeism/abandonment of position. Section 231.44, Florida Statutes, provides that a School Board employee who is willfully absent from duty without leave shall forfeit compensation for that time and be subject to termination. Further, Rule 6Gx13-4E-1.01 provides that, except in the case of a sudden illness or emergency situation, an employee who is absent without prior approval, is deemed to be willfully absent without leave. Respondent was absent excessively (over 40 absences) prior to her second medical leave of absence and had begun incurring excessive unauthorized absences the month prior to the School Board's vote on the recommendation that she be terminated from her employment. Respondent's excessive and unauthorized absences violate the Collective Bargaining Agreement, Article XVIII, Section 19, which requires prior approval for absences, and which further provides that a violation constitutes a basis for dismissal.
As the violation in each individual Count constitutes grounds for dismissal, the three Counts taken cumulatively also
should.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered sustaining Respondent's suspension, denying any claim for back pay, and dismissing Respondent from her employment by the School Board of Miami-Dade County, Florida.
DONE AND ENTERED this 3rd day of April, 2002, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
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 3rd day of April, 2002.
COPIES FURNISHED:
Luis M. Garcia, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Susan L. Duerson
15601 Southwest 137th Avenue, No. 306
Miami, Florida 33177
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
Tallahassee, Florida 32399-0400
James A. Robinson, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Merrett R. Stierheim, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue, Room 912
Miami, Florida 33132-1308
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 15, 2002 | Agency Final Order | |
| Apr. 03, 2002 | Recommended Order | Dismissal appropriate for school clerk who failed to correct her deficiencies in her performance and was guilty of failing to comply with the directives of her supervisor. |
