STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 02-0343
)
HENRIETTA DOLEGA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on April 18, 2002, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Mark Herdman, Esquire
Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges.
If so, what action, if any, should be taken against Respondent.
PRELIMINARY STATEMENT
On January 16, 2002, the School Board of Miami-Dade County (School Board) suspended Respondent from her position as a continuing contract teacher and initiated a dismissal proceeding against her. By letter dated January 18, 2002, Respondent advised the School Board that she "wish[ed] to request a hearing in order to contest [her] suspension and dismissal." On
January 28, 2002, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge.
On February 15, 2002, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges, which read as follows:
The matter is before the Division of Administrative Hearings of the State of Florida, pursuant to Section 120 et seq., Fla. Stat.
At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX,
Constitution of the State of Florida, and § 230.03, Fla. Stat.
At all times material hereto, Respondent Henrietta Dolega was employed by Petitioner as a teacher within the school district of Miami-Dade County, Florida, assigned to South Dade Senior High School (South Dade), William Chapman Elementary School (Chapman), or other public schools operated by Petitioner.
Respondent has been employed by Petitioner since 1983.
Respondent is employed pursuant to a continuing contract.
From 1984 through 1997, Respondent's work history was characterized by extensive performance problems and extensive absences and authorized leaves of absence.
On or about March 14, 1997, a Conference-for-the-Record (CFR) was held with Respondent to address her attendance and future employment. Respondent was advised that her absences were disruptive and must cease. Respondent thereafter took leave retroactive to January, 1997. Subsequently, Respondent extended her leaves of absence.
On or about February 15, 2001, Respondent's last authorized leave of absence expired. Respondent had no further leave available to her.
On March 30, 2001, Respondent was cleared by a physician to return to full- time teaching.
On or about April 25, 2001, a CFR was held with Respondent to address her attendance, medical fitness to perform assigned duties, work history, and future employment status. Respondent was advised
that she had exhausted all leave options and that no further requests for leave would be granted.
At the CFR on April 25, 2001, Respondent was issued the following directives and warnings:
Be in regular attendance and on time.
Intent to be absent must be communicated directly to the principal.
Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absences.
Should future absences exceed the number of days accrued, the absences would be considered unauthorized leave without pay and employment action would follow.
Respondent returned to work on April 30, 2001.
On or about October 30, 2001, Respondent's principal notified Respondent that her absences were excessive. Respondent's principal again issued the directives stated in ¶11, above. Respondent was warned that non-compliance with these directives could result in disciplinary action.
On or about November 16, 2001, a CFR was held with Respondent to address Respondent's attendance, medical fitness to perform duties, non-compliance with School Board rules and policy regarding attendance, non-compliance with directives regarding attendance, work history, and Respondent's future employment status. The directives
stated in ¶¶11 and 13, above, were reiterated.
On or about December 12, 2001, a meeting was held with Respondent to address the pending dismissal to be acted upon by the School Board at its next meeting.
Petitioner, at its regularly scheduled meeting of January 16, 2002, took action to suspend Respondent without pay and to initiate dismissal proceedings against her on the grounds of gross insubordination, willful neglect of duty, and incompetency. This action was taken in accordance with §§ 230.23(5)(f) and 231.36(4)(c), Fla. Stat.
COUNT I
GROSS INSUBORDINATION
Petitioner repeats each and every allegation contained in paragraphs 1 through 16, above, with the same force and effect as if fully set forth herein.
Such conduct by Respondent constitutes a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Such acts by Respondent constitute gross insubordination, as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to § 231.36(4)(c), Fla. Stat.
COUNT II WILLFUL NEGLECT OF DUTY
Petitioner repeats each and every allegation contained in paragraphs 1 through 16, above, with the same force and effect as if fully set forth herein.
Such conduct by Respondent constitutes a constant or continuing intentional refusal
to obey a direct order, reasonable in nature, and given by and with proper authority.
Respondent's pattern of absences constitutes willful neglect or duty, as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to § 231.36(4)(c), Fla. Stat. and/or 231.44, Fla. Stat.
COUNT III INCOMPETENCY
Petitioner repeats each and every allegation contained in paragraphs 1 through 16, above, with the same force and effect as if fully set forth herein.
Respondent lacks adequate physical ability to perform her duties.
Such acts by Respondent constitute incompetency, as defined by Rule 6B- 4.009(1)(b)(2), F.A.C., a ground warranting dismissal pursuant to § 231.36(4)(c), Fla. Stat.
WHEREFORE, Petitioner, The School Board of Miami-Dade County, respectfully requests the duly assigned Administrative Law Judge of the Division of Administrative Hearings to enter an order sustaining the suspension of Respondent Henrietta Dolega, without pay, and further recommending that Respondent be dismissed from her employment with The School Board of Miami-Dade County, Florida, upon grounds of willful neglect of duty, gross insubordination, and incompetency.
As noted above, the final hearing in this case was held before the undersigned on April 18, 2002. Four witnesses testified in person at the final hearing: Donald Hoecherl, Paulette Martin, Dr. Thomasina O'Donnell, and Respondent. The
testimony of a fifth witness, Dr. Hans Sperling, was presented by deposition. In addition to the testimony of these five witnesses, 22 exhibits (Petitioner's Exhibits 1 through 22) were offered and received into evidence.
At the close of the evidentiary portion of the final hearing on April 18, 2002, the parties were advised of their right to file proposed recommended orders and a deadline was established (20 days from the date of the Division's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The Division received the Transcript of the final hearing (consisting of two volumes) on May 3, 2002. On May 15, 2002, the School Board filed an Opposed Motion to Amend Notice of Specific Charges to Conform to the Evidence (Motion). On
May 16, 2002, the undersigned issued an Order tolling the time for filing proposed recommended orders pending the disposition of the School Board's Motion and directing Respondent to file a written response to the School Board's Motion no later than
May 22, 2002. That same date (May 16, 2002), Respondent filed a Memorandum in Opposition to the School Board's Motion. A hearing on the School Board's Motion was held by telephone conference call on May 20, 2002. During the motion hearing, the School Board withdrew its Motion. Thereafter, the undersigned established a new deadline for the filing of proposed
recommended orders: May 24, 2002. On that date, the School Board and Respondent each filed a Proposed Recommended Order. These Proposed Recommended Orders have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida.
Among these schools are Homestead Senior High School, South Dade Senior High School, and Dr. William A. Chapman Elementary School.
The School Board provides 180 days of instruction for students during the regular school year.
Respondent has been employed as a teacher by the School Board since 1983.1
She has a continuing contract of employment with School Board.
From 1983 through the end of the 1992-93 school year, Respondent was assigned to Homestead Senior High School (Homestead).
Respondent was reassigned to South Dade Senior High School (South Dade) for the 1993-94 school year. She remained at South Dade until 1997.
At both Homestead and South Dade, Respondent taught mathematics.
Donald Hoecherl was the principal of South Dade from 1994 until 1999.
During his first year at South Dade, Mr. Hoecherl had "problems and concerns [regarding Respondent's] numerous absences from work and the fact that those absences seriously impacted the delivery of the education product" to Respondent's students.
He reviewed Respondent's South Dade attendance records and discovered that there was a "pattern of absences": 102 absences during the 1993-94 school year and 74.5 absences during the 1994-95 school year, as of May 19, 1995.
Mr. Hoecherl then prepared the following memorandum, and gave it to Respondent (on May 19, 1995), after discussing its contents with her:
MEMORANDUM May 19, 1995
TO: Henrietta Dolega, Teacher
FROM: Donald A. Hoecherl, Principal South Dade Senior High School
SUBJECT: ABSENCE FROM WORK SITE DIRECTION
Please be advised that you have been absent from the worksite during the 1994-95 school year for a total of 74.5 days.
Additionally, during the 1993-94 school year you were absent from the worksite for a total of 102 days. The absences were listed as follows: sick-9, personal-1, contagious disease-7, leave without pay-24, hardship- 32, sick leave bank-18, and emergency leave- 11.
Your absences from duty adversely impact the educational environment by: failing to provide support services for students, impeding the academic progress of your students, failure in providing a continuity of instruction and effective operation of this school.
As a result of your continued absences from work you are advised of the following procedures concerning any future absences:
Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Dawson and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the faculty handbook.
Emergency lesson plans for twenty days on file with your department chairperson.
Maintain the emergency lesson plans at
20 days upon return from absences.
Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Dawson upon your return to work along with a medical release to return to full duties.
If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented.
These directives are in effect upon the receipt of this notice and are necessary to prevent adverse impact to students and their academic progress, and to insure a continuity of the educational program.
Additionally, these procedures are meant to maintain effective worksite operations.
Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities.
The directives contained in the memorandum were reasonable in nature and within Mr. Hoecherl's authority to give Respondent. Mr. Hoecherl required Respondent to have "[e]mergency lesson plans for twenty days on file with her department chairperson" because "there would often be that many [consecutive] da[ys] [that Respondent would be] out."
On May 22, 1995, Mr. Hoecherl held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences from work." Mr. Hoecherl subsequently prepared (on June 2, 1995) and furnished to Respondent (on June 7, 1995) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows:
A conference for the record was held on May 22, 1995, in the office of the principal.
The conference was attended by: Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, Carol Brown, Assistant Principal and Donald A. Hoecherl, Principal. The conference as indicated in the notification dated May 19, 1995, addresse[d] your excessive absences from work.
Please find attached the memorandum titled "Absence From [Work] Site Direction." The procedures outlined in that directive were reviewed during the conference. You are reminded that these procedures must be adhered to.
Mrs. Chinni indicated that you felt two areas outlined in the absence from work site direction procedures were unreasonable and bordered on violating your contractual rights. The items were the requirement to have 20 days of emergency lesson plans on file with your department chairperson and direction to notify two people of your absences.
After further review the established guidelines will remain as written in the "Absence From Work Site Direction." That memorandum, therefore is now a formal part of this summary of the conference for the record. Additionally, you were provided information regarding areas of assistance available to you through the Dade County Public School System.
I am confident that the concerns identified can be corrected. You are reminded that you are entitled to attach a written response to be included as part of this process.
In an effort to help Respondent improve her attendance, Mr. Hoecherl referred Respondent to the School Board's Employee Assistance Program on May 25, 1995.
Respondent's attendance, however, did not improve.
Furthermore, "she didn't always" follow the directives set forth in Mr. Hoecherl's May 19, 1995, memorandum. There were occasions when she did not have a 20-day supply of lesson
plans on file with her department chairperson; neither did she consistently notify Mr. Hoecherl or Mr. Dawson of her intent to be absent.
Accordingly, on December 19, 1995, Mr. Hoecherl held another Conference-for-the-Record with Respondent. Mr. Hoecherl subsequently prepared (on January 16, 1996) and furnished to Respondent (on February 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows:
A conference for the record was held on December 19, 1995 at 9:05 A.M. in the office of the principal. The conference was attended by Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, and Donald A. Hoecherl, Principal. The conference as indicated in the notification of the conference for the record dated January 15, 1995, addressed your continual absence from work. It was noted during this conference for the record that as of December 19, 1995 you have acquired twelve absences from work. It was noted that your absence disrupts the educational process for our students.
Additionally, it was noted that as of December 19, 1995 you were out of all accrued sick leave. Also, you were reminded that on several occasions you failed to follow the prescription provided on May 19, 1995 in the Absence From Work Site Directi[on]. You were reminded that you must notify the Principal or the Principal's Designee in addition to Ms. Dafcik.
Additionally, you were reminded that failure to comply with the guidelines outlined in the conference for the record and the Absence Form Work Site Directi[on] would result in additional administrative action.
Please feel free to contact me if I may be of any help in providing any assistance in an effort to mediate this ongoing problem. You are reminded that you are entitled to attach a written response to be included as a part of this process. I am confident that the concerns identified in this conference can be corrected
Ms. Chinni, on behalf of Respondent, submitted the following written response to Mr. Hoecherl's January 16, 1996, memorandum and requested that it be considered an "addendum" to the memorandum:
In the summary of conference for the record for Henrietta Dolega held Tuesday, December 19, 1995, the following items were omitted:
The conference was also attended by Ted Hennis, Assistant Principal.
The union stated that Ms. Dolega had documentation for all of her absences and that she was actively trying to address her health problems.
The union stated that Ms. Dolega had shown a pattern of intent to comply with the directive to inform Mr. Hoecherl when she was going to be absent.
Respondent was absent a total a 46 days during the 1995-96 school year.
From the beginning of the 1996-97 school year through October 24, 1996, Respondent had ten days of absences.
Respondent also arrived late to work and failed to provide "emergency lesson plans" in accordance with Mr. Hoecherl's May 19, 1995, memorandum.
Accordingly, on October 24, 1996, Mr. Hoecherl held another Conference-for-the-Record with Respondent to address these ongoing problems. Mr. Hoecherl subsequently prepared (on October 25, 1996) and furnished to Respondent (on October 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows:
A Conference-for-the Record was held on Thursday, October 24, 1996 at 8:54 a.m. Present at the conference were Ted Hennis, Assistant Principal; Henrietta Dolega, Teacher; Donald A. Hoecherl, Principal; and Katrina Chinni, UTD Representative.
This conference was held in compliance with the UTD Contract Article XXI and addressed:
Absences from work.
Lateness to work.
Failure to provide emergency lesson plans as outlined in the work site directive.
Absences from Work
A review of your attendance indicated that in addition to your absences addressed during the Conference-for-the-Record held on January 16, 1996, you missed an additional twenty-seven (27) days for a total of 46 days during the 1995-1996 school year. As of this date, you have been absent a total of ten (10) days for the 1996-1997 school year. Additionally, you are currently out of accrued or personal leave. Furthermore, it has been noted that on several occasions you have been late to work.
Your absences from duty and lateness to work adversely impact[] the educational
environment by: failing to provide support services for students, impeding [t]he academic progress of your students, failure in providing a continuity of instruction and effective operation of this school
Your failure to maintain the emergency lesson plan file is in direct disregard for the procedures established prior to and re- established during the Conference-for-the Record held January 16, 1996.
In an effort to be clear, as this is a new school year, you are reminded that, as a result of your continued absences from work you are advised that you must continue to adhere to the following procedures concerning any further absences:
Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Hennis and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the Faculty Handbook.
Emergency lesson plans for twenty
(20) days on file with your Department Chairperson and Mr. Hennis.
Emergency lesson plans must be reviewed by Mr. Hennis prior to being placed in your emergency lesson plan file.
Maintain the emergency lesson plans at a twenty (20) day level upon return from absences.
Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Hennis upon your return to work along with a
medical release to return to full duty.
Any absence not documented as indicated above and outside of your six (6) personal days will be listed as unauthorized leave without pay.
If it is determined that future absences are imminent, leave must be requested and procedures for Board Approved leave implemented.
In regard to [the] Gail L. Grossman, Attorney at Law, request to reschedule the Conference-for-the-Record as she was unavailable to attend and provide representation[,] [y]ou were reminded that Article XXIV of the UTD Contract states "An employee ma[]y not be represented by a minority/rival union or by an attorney in a Conference-for-the-Record.
This administrator asked if you had any comments and you replied that in regard to the lesson plans provided during one of your absences that the Department Chairperson misunderstood your references to the mixed review, thus not providing an adequate lesson for the day.
The directives established are in effect as of this conference and are necessary to prevent adverse impact to students and their academic progress and to [e]nsure a continuity of the educational program.
Additionally, these procedures are necessary to maintain an effective worksite operation.
Also be assured that assistance will continue to be provided upon your request. In conclusion, failure to comply with these directives will result in additional disciplinary action. You are apprised of your right to append, to clarify or to expand any information recorded in the conference by this summary.
Mr. Hoecherl again referred Respondent to the School Board's Employee Assistance Program on October 24, 1996, in a continuing effort to help her improve her attendance.
Respondent's attendance, however, continued to be a problem. By February 24, 1997, Respondent had accumulated 40 days of absences for the school year (nine days of sick leave, two days of personal leave, 25 days of authorized leave without pay, and four days of unauthorized leave without pay).
By memorandum, dated February 25, 1997, to Dr.
Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, Mr. Hoecherl requested a "determination of fitness" for Respondent. The memorandum read as follows:
I am by way of this memorandum requesting the assistance of the Office of Professional Standards regarding Ms. Henrietta Dolega (employee # 143398). Ms. Dolega has a history of excessive absenteeism from the 1993-1994 school year to present.
Ms. Dolega's attendance pattern has seriously impacted the students in her charge. At the present time, she is assigned to teach Algebra II for five class periods.
Based on the information provided, I am requesting that a Determination of Fitness be conducted prior to Mrs. Dolega's return to South Dade High School.
Please contact me at 247-4244 if you require any additional information.
Appended to the memorandum was a "leave history that Mr. Hoecherl provided to Dr. O'Donnell" indicating the number and types of Respondent's absences from the 1993-1994 school year up to February 24, 1997.
As of March 10, 1997, Respondent had been absent 28 consecutive days.
On March 7, 1997, Respondent had requested, in writing, "a leave of absence without pay effective 2/24/97 through 3/10/97 (TENTATIVE)." On March 10, 1997, Mr. Hoecherl sent the following memorandum to the School Board's Leave Office requesting that Respondent's leave request be denied:
I am requesting that the Leave Without Pay Request from Henrietta Dolega, employee #143398 be denied.
As you can see from her request, Ms. Dolega is requesting leave from February 20 through March 10, 1997. Ms. Dolega has been absent from work a total of fifty (50) days this school year. Her latest absences began January 27, 1997, and as of March 10, 1997, continues for 28 consecutive days.
This current request for Leave Without Pay comes to us after the fact. As a result, a permanent substitute could not be secured. Ms. Dolega continues to notify us on a weekly basis of her attendance status.
Additionally, a review of Ms. Dolega's attendance history indicates that this is not a first time occurrence. . . .
On March 14, 1997, Dr. O'Donnell held a Conference- for-the-Record with Respondent, at which it was agreed that
Respondent would be placed on medical leave (without pay) until April 30, 1997. Dr. O'Donnell subsequently prepared (on March 19, 1997) and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows:
On March 14, 1997, a meeting was held with you in the Office of Professional Standards. In attendance were: Mr. Don Hoecherl, Principal, South Dade Senior; Ms. Julia Menendez, Director, Region VI; Ms. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. This meeting was held to clarify your status in reference to returning to work and your future employment with Dade County Public Schools.
Your attendance pattern over the past four years was reviewed as follows:
1993-94 | 102 total days absent |
1994-95 | 75.5 total days absent |
1995-96 | 46 total days absent |
1996-97 | 55 total days absent |
as of 3-14-97
Despite the fact that you have provided documentation from your physician, your pattern of absences has caused serious problems with the delivery of an appropriate curriculum and the continuity of the educational program.
You have been absent the past 35 consecutive days and you were notifying the school on a daily or weekly basis. Therefore, Mr.
Hoecherl was not able to hire a full-time certified teacher to replace you. At this point, the following options were reviewed with you:
be in attendance every day
resign you position from Dade County Public Schools
retire, if eligible
request leave.
Your pattern of absences and leaves is disruptive and must stop. A long term solution is vital. You agreed to request leave through April 30, 1997. By April 23, 1997, you will provide official written clearance by your physician or you will extend your leave through the end of the 1996-97 school year. Should you return this school year, Mr. Hoecherl will expect you to be in attendance every day. If you are absent, the school will take action. Also, you will be required to clear through the Office of Professional Standards prior to your return either in May or August 1997.
You were reminded to follow the directive previously given you regarding absences. You must speak with Mr. Hoecherl or Mr.
Hennis during work hours. Do not leave messages on answering machines or with anyone else. Further, you were directed to provide original notice from your physician rather than a fax.
It is the desire of DCPS that you can resolve your health issues and return to work. However, if you cannot, a more permanent resolution must be reached. You agreed to provide to me the original leave form with an attached doctor's notice by March 24, 1997.
Respondent, who suffered from adhesions, thereafter requested, and was granted, a series of extensions of her medical leave (without pay).
After being on medical leave for three years, Respondent became depressed and started seeing a psychiatrist, Stephen Kahn, M.D.
By letter dated March 30, 2001, Dr. Kahn "released [Respondent] to resume her position as full-time teacher without restriction."
On April 25, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss Respondent's return to the classroom. Dr. O'Donnell subsequently prepared (on April 26, 2001) and furnished to Respondent (on May 5, 2001) a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows:
On April 25, 2001, a conference-for-the- record was held with you in the Office of Professional Standards (OPS). In attendance were: Ms. Clemencia D. Waddell, Region Director, Region VI; Dr. Randy Biro, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator.
Service History
As you reported in this conference, you were initially employed by Miami-Dade County Public Schools as a teacher in October 1983, and you were assigned to Homestead High School through June 1993. You were assigned to South Dade Senior High School from August 1993 through January 1997. You have been on Board approved leave since January 1997 through the present.
You indicated that your teacher certificate is valid through June 30, 2004, in
Elementary Education, Mathematics, and that you hold a Continuing Contract (CC) with the District.
Conference Data Reviewed
A review of your personnel file in the Office of Professional Standards reveals an extensive documentation of attendance and performance problems since 1984. On March 14, 1997 a conference-for-the-record was held in the Office of Professional Standards. On that date, your attendance pattern was reviewed from the prior four years and is as follows:
Years Days Absent
1993-1994 | 102 | days |
1994-1995 | 78.5 | days |
1995-1996 | 46 | days |
1996-1997 | 55 | days (prior to |
March 14th)
At the March 14, 1997, conference-for-the- record held in the OPS, you were told that despite the extensive documentation provided from a variety of treating physicians, your absences are deemed to be excessive. You were advised that if you could not be in regular attendance to request a Board- approved leave of absence; which you did. A review of your leave history is as follows:
Leave From Through Type
October 8, 1992 December 16, 1992 Illness
October 25, 1994 December 16, 1994 Illness
February 2, 1994 May 31, 1994 Illness
February 18, 1997 February 15, 2001 Personal
As of this date, you have exhausted all leave options available to you through Miami-Dade County Public Schools and no further requests for any type of leave would be honored. You were asked if you
understood this condition and you indicated that you did.
You were told that your treating physician, Dr. Stephen Kahn, forwarded a statement which read, "Ms. Dolega is released to resume her position as full-time teacher without restriction." However, he did not respond to several requests from OPS to review the job descriptions for both elementary and secondary teacher. Dr. Randy Biro stated that you feel you can perform all of the responsibilities of a teacher.
Ms. Clemencia Waddell informed the participants that you are assigned to William A. Chapman Elementary School with teaching duties within your area of certification.
You were told that, from information provided by the payroll department, you would be granted four sick days upon your return. You were also told that taking into consideration your previous history with poor attendance that you would be referred to OPS if you were absent; you said that you understood.
Action Taken
You were reminded of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools.
The following directives are herein delineated which were issued to you during the conference concerning future absences.
Be in regular attendance and on time.
Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary.
Site procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site.
Should future absences exceed the number of days accrued, the absences will be considered LWOU and employment action will ensue.
These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to students and their academic progress, the operation of the work unit, and to insure continuity of the educational program.
Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures.
During the conference, you were provided with a copy of School Board Rule 6Gx13-4A- 4E-1.01, Absences and Leave. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism.
Ms. Martin, Principal, was apprised as to your return to the worksite on April 30, 2001, to assume classroom duties.
Action To Be Taken
You were advised that the information prescribed in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region VI and the Principal of William A. Chapman Elementary School.
Any noncompliance with the prescriptive directives issued would result in the recission of site disciplinary action and
compel district disciplinary measures to include dismissal.
Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record.
The directives given to Respondent at the April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) were reasonable in nature and given with proper authority.
The "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent" at Dr. William A. Chapman Elementary School (Chapman Elementary) required each teacher to have a folder containing lesson plans for a five-day period for use by a substitute in the event of the teacher's absence.
Respondent returned to the classroom after more than a four-year absence on April 30, 2001.
She was assigned to Chapman Elementary to teach a third grade class with 13 or 14 students.
Paulette Martin is now, and has been since the 2000-01 school year, the principal of Chapman Elementary.
In early May of 2001, shortly after Respondent's return to the classroom, her younger brother passed away.
Too upset to come to work, Respondent took off from work the following day. Her absence was covered by accrued leave and authorized.
Respondent took off from work one other day during the 2000-01 school year following her return to work. Feeling "bad[ly]" about her brother's death and her failure to have attended his funeral (in Maryland), Respondent had trouble sleeping at night. It "got to a point" where Respondent believed that, for the sake of her health, she needed to take a day off from work. That day was June 7, 2001. This second absence following her return to the classroom was also covered by accrued leave and authorized.
Respondent was not assigned to teach summer school following the 2000-01 school year.
Respondent returned to Chapman Elementary for the 2001-02 school year.
In September and October of that year she was absent a total 12 days (September 4, 14, 27, and 28, and October 1, 2, 3, 4, 5, 10, 22, and 23). Six of these days of absences (September 4, 14, 27, and 28 and October 1 and 22) were covered by accrued leave and authorized. The remaining days of absences were not covered by accrued leave and they were unauthorized.
These absences "had a negative impact on [the students in Respondent's] class."
On October 30, 2001, Ms. Martin prepared the following memorandum, which she subsequently gave to Respondent:
SUBJECT: NOTICE OF EXCESSIVE ABSENCES
September | 4 | Sick |
September | 14 | Sick |
September | 27 | Sick |
September | 28 | Sick |
October 1 | Sick |
It has been determined that you have been excessively absent during the 2001-2002 school year. To date, you have been absent on the following days:
October | 2 | LWOPU[2] |
October | 3 | LWOPU |
October | 4 | LWOPU |
October | 5 | LWOPU |
October | 10 | LWOPU |
October | 22 | Sick |
October | 23 | LWOPU |
Your absences total twelve (12) days, exceeding the number of days you have accrued. As stated in the Summary of the Conference-for-the-Record of April 25, 2001, you were advised of past absences and directed as follows:
Be in regular attendance and on time.
Intent to be absent must be communicated directly to the principal.
Site procedures for provision of lesson plans and materials for substitute teachers when absent must be adhered to in the event of absence.
Should future absences exceed the number of days accrued, absences will be considered Leave Without Pay
(Unauthorized) and employment action will ensue.
You were also advised that noncompliance with these directives would necessitate a review by the Office of Professional Standards for imposition of disciplinary measures.
Please be advised that this memorandum is being submitted to the Office of Professional Standards and the Region Director for Personnel for review and subsequent action.
Ms. Martin brought to Dr. O'Donnell's attention that "once again [Respondent] was experiencing attendance problems and had been excessively absent."
Accordingly, on November 16, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent. Dr. O'Donnell subsequently prepared (on that same date) and furnished to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows:
Conference Data Reviewed
A review of the record included reference to the following issues:
Attendance-to-date
Leave/attendance history
Previously issued attendance directives.
You returned to the work site on April 30, 2001. You were absent two days before the end of the school year which ended on June
15, 2001. Your attendance for the current school year is as follows:
Sick/Personal 6
Temporary Duty 1
Leave Without Pay 6
(Unauthorized) 13**
**through October 23, 2001
15 days absence since your return from leave on April 30, 2001
You were asked if you wished to respond to this continuing pattern and you said that in reference to your absences last May, your brother passed away. You stated that you have had all of your teeth pulled and replaced and that is why you have been absent this school year. You were reminded of the directives regarding attendance that you have been previously issued. You were told that your dental problem should have been addressed during the summer or winter break or any time that would not interfere with the educational program of the students.
You were then reminded of a meeting held with you in the Office of Professional Standards on March 14, 1997, which was held to review your absences and ability to return to work. The following options were reviewed with you at the meeting:
Be in attendance every day
Resign your position from Miami-Dade County Public Schools
Retire, if eligible
Request leave
You effected a leave retroactive to January 1997 after the March 1997 meeting. You were reminded of your previous record of absences and leaves as reviewed at the conference- for-the-record held in the Office of
Professional Standards on April 25, 2001 which was as follows:
Years Days Absent
1993-1994 102 days
1994-1995 78.5 days
1995-1996 46 days
1996-1997 55 days**
**through January 1997 when you effected leave.
Leave From Through Type October 8, 1992 December 16, 1992 Illness
October 25, 1994 December 16, 1994 Illness
February 2, 1994 May 31, 1994 Illness
February 18, 1997 February 15, 2001 Personal
You were reminded that previously your absences had been deemed to be excessive. You were also reminded that you have exhausted all leave options and no further requests for any type of leave would be honored. You were asked if you wished to respond to this information and you declined comment.
At the April 25, 2001 conference-for-the- record, which was held in OPS, your treating physician forwarded a statement which read in full, "Ms. Dolega is released to resume her position as full-time teacher without restriction." At that meeting, Dr. Randy Biro, your Member Advocate, stated that you are able to perform all teaching responsibilities. You were also reissued attendance directives.
You have failed to comply with the directives which were issued to you by virtue of your six unauthorized absences during the current school year. Your actions are considered to be gross insubordination. You were asked if you had any statement to make regarding your
continued pattern of excessive absences and you did not.
Action Taken
You were told that due to your history of excessive absences, you had been referred to OPS. On two previous occasions, as well as today's conference, you were issued the following directives:
Be in regular attendance and on time.
Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary.
Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absence from the site.
Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU) and employment action will ensue.
Pending further review of this case and formal notification of the recommended action of disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit and to the services provided to students, as well as to insure continuity of the program. Noncompliance with these directives will necessitate further review by the Office of Professional Standards for the imposition of (additional and immediate) disciplinary action.
You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism.
Ms. Martin was apprised as to your return to the worksite.
You were advised to keep the information presented in this conference confidential and not discus this with students or staff.
Action To Be Taken
You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Superintendent of Region VI, Assistant Superintendent in the Office of Professional Standards, and the Principal of William A. Chapman Elementary School.
Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include any of the following: a letter of reprimand, Domain VII (PACES Professional Responsibilities Component) Professional Improvement Plan (PIP) which could impact the annual evaluation decision, suspension, or dismissal.
Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record.
Respondent was not absent in November of 2001. Her next absence was on December 10, 2001. This absence was covered by accrued leave and authorized.
A determination was made that Respondent "be recommended for dismissal for the following charges: gross insubordination, willful neglect of duty and incompetency."
On December 12, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss this recommendation. Respondent was given the option to resign or retire "in lieu of dismissal." Speaking through her union representative, Respondent declined the offer, claiming that her "absences were due to illness."
On the days that she was absent following her return to the classroom on April 30, 2001, Respondent did not report to work because she believed that she was too ill to do so. Although she was well aware of the directive that she had been given to "[b]e in regular attendance," she felt that, because of her condition on these days, she was not able to come to work and properly discharge her classroom teaching responsibilities.
At the beginning of the school year, Respondent cut her leg on her dishwasher and the wound did not heal properly. She consulted her physician, who prescribed two antibiotics for her. The antibiotics "knocked [her] for a loop" and she missed work as a result.
Respondent also missed a day of work because she had a bout of diarrhea.
On September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, Respondent was recovering from oral surgery (the extraction of all of her remaining teeth) that was performed on her after school on Wednesday, September 26, 2001. She was absent on these days because she was "taking pain pills and [she] was really in pain."
The surgery that resulted in her absences on September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, was done to enable Respondent to receive full upper and lower dentures.
Respondent had a long-standing need for such dentures.
The dentures were necessary, as her dentist, Dr. Hans Sperling, testified (by deposition), because:
[Respondent] ha[d] extensive decay in her mouth present to the point that the teeth were not restorable. She also had severe periodontal disease, extensive bone loss around the teeth, which will not render the teeth appropriate to use as [an] abutment to retain either a partial denture or fixed bridges.
Dr. Sperling first noticed "extensive decay in [Respondent's] mouth" during her initial visit to his office on October 9, 1999. At that time, Dr. Sperling told Respondent that "she needed the extractions" and that they should be "done by an oral surgeon" because of the "extensive amount of teeth
that need[ed] to be taken out." He further advised her "that she would need a complete exam before anything else was done."
Respondent did not see Dr. Sperling again until April 6, 2001, when Dr. Sperling gave her a "complete exam," which revealed that she still had "severe decay in her teeth." Dr. Sperling also found that she had "severe periodontal disease."
Respondent next saw Dr. Sperling on June 26, 2001. On that date, Dr. Sperling "took impressions of her lower and upper jaws," the first step in the process to provide her with dentures.
Respondent was next scheduled to see Dr. Sperling on July 19, 2001, but she "broke[] this appointment."
Respondent next saw Dr. Sperling on August 9, 2001.
During this visit, Dr. Sperling "registered her bite so [he could] articulate the models on an articulator."
Respondent's next visit to Dr. Sperling was on September 5, 2001, when she "tried . . . the [dentures] that she was going to be having."
Her last pre-surgery visit to Dr. Sperling was on September 25, 2001, when she picked up the dentures that the oral surgeon was going to place in her mouth.
Dr. Sperling advised Respondent that it would take approximately four days for her to recover from the oral surgery
and suggested that she schedule the surgery for a Thursday so she would be able to return to work on the following Monday.
Respondent scheduled the oral surgery for Wednesday, September 26, 2001. Respondent believed that, by having the surgery on this date, she would miss only two days of work and only one day with her students inasmuch as Friday, September 28, 2001, was a teacher planning day and she anticipated that she would be able to return to the classroom the following Monday, October 1, 2001. Respondent had enough accrued leave to cover this anticipated two-day absence.
Respondent's recovery, however, took longer than anticipated and she was absent the entire workweek (Monday, October 1, 2001, through Friday, October 5, 2001) following the surgery.
Dr. Sperling conducted a "post-operative evaluation" of Respondent on October 1, 2001. He observed that "the healing was within normal limits," although Respondent did complain to him that she was still experiencing pain.
Respondent did not have the surgery done during the preceding summer, when she was not working, because she could not afford it at that time.
The dentures that were placed in her mouth "are temporary[.] [E]ventually [she will] have implants."
While Respondent's absences following her return to the classroom on April 30, 2001, were not contumacious acts, she did willfully disregard the directives given her that her "[i]ntent to be absent must be communicated directly" to Ms. Martin and that "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site."3
Respondent repeatedly failed to follow these directives despite having the apparent ability to do so (just as she had ignored similar directives when she was teaching at South Dade under Mr. Hoecherl's supervision).
Respondent did not communicate her intent to be absent to Ms. Martin prior to any of her absences.
Furthermore, Respondent did not maintain a folder containing lesson plans for substitute teachers to use in her absence.
Respondent was verbally advised that she was not in compliance with the "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent." Nonetheless, to the detriment of the students in her class, she continued to wait until after the instructional day had begun (anywhere from 45 minutes to an hour and beyond) to provide (by facsimile transmission) lesson plans for the substitute teacher
(rather than maintaining a folder with a five-day supply of lesson plans).
At its January 16, 2002, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Miami-Dade County Public School, effective the close of the workday, January 16, 2002, for gross insubordination; incompetency; and willful neglect of duty."
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. Section 230.23(5)(f), Florida Statutes ("The school board, acting as a board, shall exercise all powers and perform all duties listed below: PERSONNEL.--. . . [P]rovide for the . . . suspension, and dismissal of employees . . ."); and Section 231.001, Florida Statutes ("Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe
rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.").
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Florida Statutes.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. Section 447.209, Florida Statutes.
Continuing contract teachers employed by a district school board may be dismissed during the term of their contract in accordance with the provisions of Subsection (4)(c) of Section 231.36, Florida Statutes, which provides, in pertinent part, as follows:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, 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 immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude, as these terms are defined by rule of the State Board of Education. Whenever such charges
are made against any such employee of the district school board, the district 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 district school board or by the superintendent of schools, the district 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 district 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 district school board.
"Incompetency" is "defined by rule of the State Board of Education," specifically Subsection (1) of Rule 6B-4.009, Florida Administrative Code, as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes[4]); (2) repeated
failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
"Gross insubordination" and "willful neglect of duties" are "defined by rule of the State Board of Education," specifically Subsection (4) of Rule 6B-4.009, Florida Administrative Code, as follows:
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.
With respect to the requirement that the refusal be "intentional," the First District Court of Appeal, in Forehand
v. School Board of Gulf County, 600 So. 2d 1187, 1193 (Fla. 1st DCA 1992), has stated the following:
The word "intent" is used throughout the Restatement of Torts, 2nd, to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Sec. 8A. Black's Law Dictionary 727 (5th Ed. 1979) (emphasis
added). An "intentional" act has been defined as one "done deliberately." American Heritage Dictionary of the English Language 683 (New College ed. 1979) (emphasis added).
Continuing contract teachers may also be dismissed during the term of their contract pursuant to Section 231.44, Florida Statutes, which provides, as follows:
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 district school board.
The First District Court of Appeal has held that "a teacher's violation of Section 231.44 by willful absence without leave is 'misconduct in office' or 'willful neglect of duty,'" as those terms are used in Section 231.36, Florida Statutes. School Board of Collier County v. Steele, 348 So. 2d 1166, 1168 (Fla. 1st DCA 1977).
"Under Florida law, a [district] school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."5 Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
The employee must be given written notice of the specific charges prior to the "formal hearing." Although the
notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).
Any adverse action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency for Health
Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the "formal hearing," the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise (and there is no indication that the collective bargaining agreement covering Respondent's bargaining unit contains such a provision),6 the district school board's proof need only meet the preponderance of the evidence standard. See
McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v.
Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v.
School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard.").
The Notice of Specific Charges served on Respondent alleges that Respondent should be terminated because of her
"gross insubordination, as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to § 231.36(4)(c), Fla. Stat." (Count I); "willful neglect of duty, as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to
§ 231.36(4)(c) and/or 231.44, Fla. Stat." (Count II); and "incompetency" by physical incapacity, "as defined by Rule 6B- 4.009(1)(b)(2), F.A.C., a ground warranting dismissal pursuant to § 231.36(4)(c), Fla. Stat." (Count III).
To prove "incompetency" by physical incapacity, "as defined by Rule 6B-4.009(1)(b)(2), F.A.C.," a district school board must establish that the teacher has a physical problem that prevents the teacher from performing one or more of the essential functions of the teacher's job (such as regular classroom attendance in the case of a classroom teacher7) and will continue to do so in the reasonably foreseeable future. Compare with Bennett v. Hertford County Board of Education, 317 S.E.2d 912, 916 (N.C. App. 1984)("We hold that physical incapacity under G.S. 115C-325(e)(1)e refers to a present and continuing inability to perform the duties and meet the responsibilities and physical demands customarily associated with the individual's job as a career teacher in the public schools. The incapacity must be in effect at the time action is taken by the Board of Education. The projected duration of the incapacity must be long term or indefinite with no reasonable
prospect for rapid rehabilitation. This interpretation of physical incapacity is consistent with the interpretations of similar laws in other jurisdictions. ").
The School Board failed to present such evidence in the instant case. It offered no expert medical testimony concerning Respondent's physical ability to do her job as a classroom teacher at the present time or in the future. Instead, in an effort to show her "incompetency" by physical incapacity, within the meaning of Subsection (1)(b)(2) of Rule 6B-4.009, Florida Administrative Code, it relied on proof of Respondent's history of excessive absenteeism. While "[a teacher's previous] excessive absences from work, even for legitimate reasons, may support a finding of inefficiency," (Paulino v. Civil Service Commission, 221 Cal.Rptr. 90, 93 (Cal. App. 1985)), such absences are insufficient to establish the teacher's "incompetency" by physical incapacity where, as in the instant case, there has been no showing that the absences were the product of a physical problem reasonably expected to continue or reoccur and to cause the teacher to be excessively absent or otherwise unfit to discharge her teaching duties in the future.
Accordingly, Count III of the Notice of Specific Charges should be dismissed.
The charges of "gross insubordination" and "willful neglect of duty" made in Counts I and II of the Notice of Specific Charges are based upon Respondent's alleged continuing non-compliance with the directives she was given at the
April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) to "[b]e in regular attendance and on time"; to "communicate[] directly" to
Ms. Martin her "[i]ntent to be absent"; and to follow "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent . . . in the event of any absence from the site."
The School Board established that, following the April 25, 2001, Conference-for-the-Record, Respondent failed to "[b]e in regular attendance" by showing that she had six post- April 25, 2001, absences that were not covered by accrued leave and were unauthorized. The preponderance of the evidence, however, does not establish that her absences were intentional acts of defiance or otherwise willful. Rather, it appears (based upon Respondent's uncontradicted testimony the undersigned has credited) that she did not report to work on the days in question because she did not feel well enough to do so. Her absences therefore did not constitute either "gross insubordination or willful neglect of duty," as those terms are defined in Subsection (4) of Rule 6B-4.009, Florida
Administrative Code, nor do they provide the School Board with a basis to terminate her employment pursuant to Section 231.44, Florida Statutes. Cf. McCourtney v. Imprimis Technology, Inc.,
465 N.W.2d 721, 724-25 (Minn. App. 1991)(employee's absences did not constitute "conduct evincing a willful or wanton disregard for the employer's interests or conduct demonstrating a lack of concern by the employee for her job" where absences were "due to circumstances beyond her control"); Matter of Carmen White, 339 N.W.2d 306, 307 (S.D. 1983)("Claimant maintains that mere illness cannot evince 'willful or wanton disregard of an employer's interests.' She equates it instead with 'failure in good performance as the result of inability or incapacity,' which . . . does not constitute misconduct. We agree. While absence from work for illness may justify an employer in discharging an employee, such absence does not amount to willful misconduct . . . ."); and Gochenauer v. Unemployment Compensation Board of Review, 429 A.2d 1246, 1248 (Pa. Commw. Ct. 1981)("[A]bsenteeism due to illness does not generally constitute willful misconduct.").
Accordingly, to the extent that Counts I and II of the Notice of Specific Charges allege otherwise, they should be dismissed.
At the April 25, 2001, Conference-for-the-Record, Respondent was not only directed to "[b]e in regular attendance
and on time," but also to "communicate[] directly" to Ms. Martin her "[i]ntent to be absent" and to follow "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent . . . in the event of any absence from the site." The preponderance of the evidence establishes that, when absent, Respondent consistently acted in willful disregard of these latter two directives, which were reasonable in nature and given with proper authority, by not communicating her intent to be absent to Ms. Martin prior to any of her absences and by not maintaining a folder that contained lesson plans for substitute teachers to use in her absence.8 See State v. Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982)("Actions manifest intent.").
Such conduct constitutes "gross insubordination" and "willful neglect of duty," as those terms are "defined by rule of the State Board of Education," specifically Subsection (4) of Rule 6B-4.009, Florida Administrative Code.
Respondent may be suspended or dismissed for this "gross insubordination" and "willful neglect of duty" pursuant to Subsection (4)(c) of Section 231.36, Florida Statutes.
It is the recommendation of the undersigned that the School Board exercise its discretion to dismiss Respondent and thereby cancel her continuing contract of employment, given the serious nature of her misconduct, the disruptive impact it had on the delivery of educational services to the students in her
class, and the absence of mitigating circumstances warranting a less severe punishment.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a continuing contract teacher with the School Board for her "gross insubordination" and "willful neglect of duty," as more specifically described above.
DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 7th day of June, 2002.
ENDNOTES
1/ Respondent began her teaching career in 1958 in New York State. After moving to Florida, she worked as a teacher in Sarasota, Florida from 1973 to 1979. She then became a real
estate salesperson. In 1983, she returned to teaching, when she was hired by the School Board.
2/ "LWOPU" is "Leave Without Pay- Unauthorized."
3/ Ms. Martin and Respondent gave conflicting testimony regarding Respondent's compliance with these directives. Given Ms. Martin's apparent candor, sincerity and honesty and her lack of bias, the undersigned has credited her testimony over Respondent's self-serving testimony to the contrary (notwithstanding that the undersigned has accepted as true other portions of Respondent's testimony). See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is free to believe parts of a witness' testimony and disbelieve other parts."); and Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(Although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).
4/ Section 231.09, Florida Statutes, provides as follows:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless
released from the contract by the district school board.
5/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
6/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
7/ See Wright v. Department of Children and Families, 712 So. 2d 830, 831 (Fla. 3d DCA 1998)("The [Public Employees Relations] has long held that 'an essential element of employment is to be on the job when one is expected to be there.'"); Darby v.
Bratch, 287 F.3d 673, 682 (8th Cir. 2002)("Defendants assert, however, that she was not qualified to perform the essential functions of the job, one of which is regular attendance. We must agree with defendants in part. Presence at the job is no doubt essential, except in cases where the job could be done from home, which is not claimed here."); Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998)("Obviously, an employee who does not come to work cannot perform the essential functions of his job. . . . The undisputed facts show that Nowak was unable to perform an essential function--regular attendance--required of a teacher at St. Rita."); Tyndall v.
National Education Centers, Inc., of California, 31 F.3d 209,
213 (4th Cir. 1994)("In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee 'who does not come to work cannot perform any of his job functions, essential or otherwise.' . . . Here, Tyndall held a job that could not be performed away from the Kee campus; her position required that she teach the assigned courses during the scheduled class times and spend time with her students."); Fields v. St. Bernard Parish School Board, 2000 WL 1560012 *8 (E.D. La. 2000)("The School Board claims, and the Court agrees, that the classroom is the workplace for a middle school teacher and that a teacher who cannot come to school is unable to perform any of the essential functions of her job. Fields has presented no evidence, or even argued, that regular attendance is not an essential element of a full-time teaching position at P.G.T. Beauregard School."); and Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 232 (Iowa 1995)("As her work had to be completed by other employees, Falczynski's chronic absenteeism plainly prevented her from performing the essential functions of her job. Indeed, she could not perform the quintessential function of regularly attending work.").
8/ During her testimony at the final hearing, Respondent offered no explanation, reason or excuse (such as ill health) for her repeated failure to comply with these directives.
COPIES FURNISHED:
Madelyn P. Schere, Esquire Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Merrett R. Stierheim Interim Superintendent
Miami-Dade County School Board 1450 Northeast 2nd Avenue, No. 912
Miami, Florida 33132-1394
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
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.
1 Respondent began her teaching career in 1958 in New York State. After moving to Florida, she worked as a teacher in Sarasota, Florida from 1973 to 1979. She then became a real estate salesperson. In 1983, she returned to teaching, when she was hired by the School Board.
2 "LWOPU" is "Leave Without Pay- Unauthorized."
3 Ms. Martin and Respondent gave conflicting testimony regarding Respondent's compliance with these directives. Given Ms. Martin's apparent candor, sincerity and honesty and her lack of bias, the undersigned has credited her testimony over Respondent's self-serving testimony to the contrary (notwithstanding that the undersigned has accepted as true other portions of Respondent's testimony). See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is free to believe parts of a witness' testimony and disbelieve other parts."); and Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(Although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).
4 Section 231.09, Florida Statutes, provides as follows:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.
5 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
6 Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 (Fla. DOAH
February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
7 See Wright v. Department of Children and Families, 712 So. 2d 830, 831 (Fla. 3d DCA 1998)("The [Public Employees Relations] has long held that 'an essential element of employment is to be on the job when one is expected to be there.'"); Darby v. Bratch, 287 F.3d 673, 682 (8th Cir. 2002)("Defendants assert, however, that she was not qualified to perform the essential functions of the job, one of which is regular attendance. We must agree with defendants in part. Presence at the job is no doubt essential, except in cases where the job could be done from home, which is not claimed here."); Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998)("Obviously, an employee who does not come to work cannot perform the essential functions of his job. . . . The undisputed facts show that Nowak was unable to perform an essential function--regular attendance--required of a teacher at St. Rita."); Tyndall v. National Education Centers, Inc., of California, 31 F.3d 209,
213 (4th Cir. 1994)("In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee 'who does not come to work cannot perform any of his job functions, essential or otherwise.' . . . Here, Tyndall held a job that could not be performed away from the Kee campus; her position required that she teach the assigned courses during the scheduled class times and spend time with her students."); Fields v. St. Bernard Parish School Board, 2000 WL 1560012 *8 (E.D. La. 2000)("The School Board claims, and the Court agrees, that the classroom is the workplace for a middle school teacher and that a teacher who cannot come to school is unable to perform any of the essential functions of her job. Fields has presented no evidence, or even argued, that regular attendance is not an essential element of a full-time teaching position at P.G.T. Beauregard School."); and Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 232 (Iowa 1995)("As her work had to be completed by other employees, Falczynski's chronic absenteeism plainly prevented her from performing the essential functions of
her job. Indeed, she could not perform the quintessential function of regularly attending work.").
8 During her testimony at the final hearing, Respondent offered no explanation, reason or excuse (such as ill health) for her repeated failure to comply with these directives.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 26, 2003 | Opinion | |
| Mar. 26, 2003 | Opinion | |
| Aug. 21, 2002 | Agency Final Order | |
| Jun. 07, 2002 | Recommended Order | Termination of continuing contract teacher who repeatedly and willfully disregarded directives regarding notification of absences and maintenance of lesson plans warranted. |
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