vs. ) Case No. 03-0884
Respondent. )
Pursuant to notice, a final hearing was held in this case in West Palm Beach, Florida, on August 19, 2003, before Florence Snyder Rivas, a designated Administrative Law Judge of the Division of Administrative Hearings.
Chamblee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place
Whether Petitioner was entitled to involuntarily terminate Respondent.
By Petition for Involuntary Resignation dated March 7, 2003, Palm Beach County Superintendent of Schools, Arthur C. Johnson (Petitioner), petitioned for the involuntary resignation of Respondent, Alison Horn (Respondent or Horn), to be effective March 13, 2003.
Respondent timely asserted her right to contest the termination.
At final hearing, Petitioner presented the testimony of Raymond Miller, personnel compliance officer; Deneen Wellings, equal employment opportunity coordinator; Learna Ramsey, equal employment opportunity coordinator; Janis Andrews, principal of Coral Reef Elementary School; and Dr. Richard Hughes, principal of Highland Elementary School. Petitioner's Exhibits 1-18 were received into evidence.
Respondent testified in her own behalf and presented the testimony of Dr. Janet Scholle, psychiatrist, and Terry Thompson, union representative.
The five-volume transcript of the final hearing was filed on September 24, 2003. A timely agreed motion to enlarge the time for the filing of proposed recommended orders was filed, and an enlargement of time was granted through October 17, 2003. The parties' Proposed Recommended Orders were timely submitted
and have been carefully considered in the preparation of this Recommended Order.
Petitioner's unauthorized Reply to Respondent's Proposed Recommended Order was not considered, therefore Respondent's Motion to Strike same is denied as moot.
References to Sections are to the Florida Statutes (2002). ADA is the acronym for 42 U.S.C. Sec. 12102, the Americans with Disabilities Act of 1990.
Since 1986, Respondent has been employed by the Palm Beach County School Board (School Board) as an elementary school teacher. At all times material to this case, Horn was certified to teach grades 1-6.
By Petition for Involuntary Resignation dated March 7, 2003, Petitioner sought the involuntary resignation of Respondent to be effective March 13, 2003.
Beginning in February 1994, and continuing through November 2001, Horn was under the care, off and on, of psychiatrist Dr. Janet Scholle (Scholle).
Horn was referred to Scholle by a therapist who had, for years, treated Horn for depression. Within a year of commencing to treat Horn, Scholle diagnosed her with bipolar disorder.
Bipolar disorder is not inherently disabling. It can, however, cause substantial "mood swings" of the type which Horn frequently demonstrated in the workplace at times material to this case.
Individuals who are able to "manage their moods" can function in any job for which they are otherwise qualified.
Under Scholle's care, Horn was treated with a variety of psychotropic drugs in an effort to stabalize her moods and control her behavior. Scholle's treatment of Horn was unsuccessful, at least with reference to Horn's ability to function as a teacher.
On March 1, 1999, Horn requested "accommodations" from Dr. Richard Hughes, her principal at Highlands Elementary School (Highlands), where she was then employed.
She was referred to a personnel officer who provided her with Petitioner's "School Policy 3.06" Concerning Persons with a Disability and Procedures for Accommodation (Policy 3.06). The policy tracks the language of the ADA, and requires that the School District provide "reasonable accommodation to a qualified individual when necessary to enable the individual to perform the essential functions of the position unless such would pose an undue hardship on the operation of the District's business."
Thereafter, Petitioner's Equal Employment Opportunity (EEO) coordinators became involved in Horn's case.
Deneen Wellings held the EEO position when Horn's case first came to her office's attention. Wellings was succeeded in that position in July 2001 by Learna Ramsey.
Wellings and Ramsey attempted to deal with Horn on the basis that Horn's inability to function at work might be ameliorated with "accommodations" within the meaning of Policy 3.06.
In March, 1999, Scholle recommended that Horn take a leave of absence from Highlands. Horn requested and received a leave through June 1999.
Later, Horn requested that the leave be extended through the conclusion of the following (2000-2001) school year. Petitioner granted leave beginning at the start of the 2000-2001 school year, but advised that leave would not be extended beyond December 2000.
In so doing, Petitioner relied upon Horn's union contract which provided that if a teacher is on a leave of absence for a full school year, she must work for a full school year before being again eligible for a leave of absence. Petitioner has not challenged the legality of this contractual provision under the circumstances of this case, neither did she
claim that the contract was enforced in a discriminatory manner when compared with other similarly situated teachers.
Thus, in January 2001, Horn was faced with a choice of making herself available for work or leaving Respondent's employ. She chose to return to work.
Petitioner was contractually bound to hold Horn's last position at Highlands open and available for her to return. Petitioner fulfilled this obligation.
Horn, however, was unwilling to return to Highlands.
The evidence established that there were no other teaching positions available. Petitioner elected to offer Horn a job in its personnel office "pending the location of an appropriate assignment for her."
Horn did not behave appropriately in the personnel office. On January 22, 2001, Petitioner assigned Horn home with full pay and benefits pending a so-called "fitness for duty evaluation."
By letter dated Febraruary 28, 2001, Jane Bonk, a mental health professional employed by Petitioner, summarized to Wellings a conversation Bonk had with Scholle in which Scholle made recommendations for accommodations. Horn exercised very little restraint in talking about her diagnosis with co-workers, yet she insisted upon extraordinary measures to protect her privacy with respect to communicating to Petitioner information
needed by his professional staff and which Petitioner was entitled to have from an employee seeking accommodations pursuant to Policy 3.06. Hence, this roundabout method of communication was employed following negotiations between Petitioner and Respondent.
Bonk's letter stated in pertinent part:
“Dr. Scholle stated that Ms. Horn’s attention deficit disorder can cause her to be disorganized. She said that Ms. Horn would be more effective if she had familiar patterns and concrete plans to follow.
Structure helps her be less anxious. Quick rapid changes are not helpful and lack of familiarity will create anxiety. She also said she will feel better if she feels listened to. This will help her to not react to the encounter, which will make her look less pathological.”
“Dr. Scholle recommended that Ms. Horn return to teaching on a part time basis since she has been out of work for some time. She feels Ms. Horn would make the transition easier with less stress this way. This would provide Dr. Scholle with an opportunity to assess how she is dealing with the change and make adjustments with her medication if needed.”
“Dr. Scholle also stated Ms. Horn might fall apart if she had someone sit in her classroom to do an evaluation. She was not sure she would get a fair evaluation and recommended that an aid (sic) keep an eye on her.”
Bonk's letter accurately summarized some of Scholle's recommendations with one exception. Scholle did not use the term "fall apart."
Scholle made additional recommendations which were not reflected in Bonk's letter. Scholle felt it necessary for school officials to provide Scholle with daily feedback regarding Horn's on the job behavior so that Scholle could advise Horn's colleagues how to accommodate Horn and advise Horn on how to manage situations. Scholle charges $600 an hour for her services.
Other recommendations include providing Horn "an environment which [Horn] felt was somewhat supportive . . . so that she didn't feel like she was going back to be scrutinized or criticized . . ."; ". . . to try and keep her in one classroom teaching maybe one subject or one class so that there wouldn't be so much need for organization . . ."; "to do part- time just because you can gradually increase the amount of stress that they're exposed to. "
Scholle further recommended that Horn not be subjected to the same type of disciplinary and evaluation processes which apply to all teachers under Florida law.
According to Scholle, even if all of the foregoing recommendations were implemented, Horn could return successfully to full-time teaching only if "everything in her life [had] gone well and there's no other external factors or health
issues. "
Horn remained home on paid leave through April 2001, when she was assigned to Starlight Cove Elementary (Starlight Cove).
Prior to her start day at Starlight Cove, Wellings and Horn met with the school's principal. There was undisputed testimony that on this occasion, Horn used profanity and spoke to the principal in a condescending manner. She also met with teachers at Starlight, at which time she behaved appropriately.
Horn was to begin work on April 30 but did not report to Starlight Cove until May 2.
By May 4, Horn was the subject of so many complaints that the principal felt the need to remove her. Petitioner placed Horn on unpaid leave through the end of the school year.
A meeting was held on July 24, 2001, between Petitioner's representatives and Horn and her counsel. It was agreed that Horn would cooperate with a fitness for duty evaluation to be conducted by psychiatrist Mark Agresti (Agresti). The meeting was held July 24, 2001.
Agresti conducted a fitness evaluation in early August 2001. The details of Agresti's evaluation are not in the record, but on August 6, 2001, Agresti rendered an opinion that Horn was fit for duty without any restrictions.
Petitioner directed Horn to report to Coral Reef Elementary (Coral Reef) on August 15, 2001. From the start,
Horn's behavior at Coral Reef was egregiously inappropriate for an elementary school teacher, or a school staff member of any kind.
More specifically, Horn was raising her voice to children and colleagues; discussing highly personal matters with staff; criticizing colleagues; and not following her assigned schedule.
The evidence established that the principal would have been justified in removing Horn immediately. Instead, the principal called Horn into numerous conferences to document her infractions, long after it was clear that Horn had no ability to comprehend her situation and to conform her behavior to the requirements of her job.
On August 28, 2001, the principal issued a memo to Horn and the teachers working with her requiring that Horn take on the task of instructing students in math and science. Based upon the numerous instances of bizarre behavior exhibited by Horn, it was unreasonable to think she could have performed teaching duties.
On August 30, 2001, Horn was again assigned to her residence with pay. The assignment was made in the form of a hand-delivered letter from Petitioner's Chief Personnel Officer. It stated that the ". . . assignment [to her residence with pay] is pending the outcome of an investigation. . . . [F]or the
duration of this investigation, you are not to speak to and/or attempt to contact any witnesses or other parties involved in this investigation, to discuss any matters material or in any way related to the allegations/investigation. Any attempt to do so will result in disciplinary action being taken against you."
The record does not reflect what was being investigated or why Horn was placed under a broad and non- specific gag order, the violation of which would result in disciplinary action.
The tone and content of the letter assigning Horn home render implausible Petitioner's contention that this leave was, as Petitioner contends, an accommodation. For at least this moment in the increasingly tense relationship between Petitioner and Respondent, Petitioner appeared to be considering options other than accommodation.
A second fitness for duty evaluation was conducted by psychiatrist Harley Stock (Stock). Stock rendered a detailed and persuasive report dated February 22, 2002, in which he opines that Horn was permanently unfit for duty. Stock's report is hearsay, but substantial portions of the report corroborate other persuasive evidence, including commendably candid testimony provided by Horn regarding her instability, as well as her propensity to engage in inappropriate workplace behavior, and to make ill-advised statements.
For example, Horn invited scrutiny and workplace gossip regarding her bipolar diagnosis by disclosing it to colleagues who had no reason to be told and no desire to hear details of her personal life and medical issues.
In this and numerous other ways, Horn failed to respect boundaries in the workplace. In so doing, she may have subjected herself to closer scrutiny than was applied to colleagues who did not constantly call attention to their personal problems, but there was no evidence that Horn was treated differently than supervisors would treat any employee who conducted herself at work as Horn did.
Scholle attempted to rebut portions of Stock's evaluation in a written response dated July 16, 2002. In the response, and in her testimony at final hearing, Scholle did not challenge any significant factual finding made by Stock. Neither did Scholle nor Horn challenge any significant factual representation made by Horn to Stock in the course of his interviews of Horn.
Scholle did not even unambiguously disagree with Strock's ultimate finding that Horn was unfit for duty at times material to this case. Instead, she opined in substance that Horn could perform her job if everything else in her life went well and if Petitioner relieved her of workplace stress.
Horn opined that she was a "very, very vital and very successful" teacher until her bipolar diagnosis caused her to be ". . . treated very differently and much more harshly; nothing was ever the same for her. She was placed under more stringent rules and regulations. "
To the contrary, clear and convincing evidence, much of it provided by Horn herself, established that at all times material to this case, Horn's behavior created untenable situations and worked a severe hardship upon students and colleagues forced to deal with her.
Horn contends that she was not "accommodated" because Petitioner inappropriately "micromanaged" her and indeed, the evidence established that with respect to at least one of Horn's supervisors, no transgression by Horn was too petty to document. It does not follow, however, that Scholle's recommendations could be implemented so as to "accommodate" Horn without undue hardship to the school district.
Instead, the record as a whole establishes that no work situation could be structured by Petitioner which would allow Horn to function in a job that would be recognizable as a teacher of elementary school students.
Horn testified that in her present employment at Aldelphia Cable (Aldelphia), she is successful and is being promoted. She contends this is so because she ". . . is given
constructive criticism at Adelphia when they have any type of concerns and is given a lot of support, and she's succeeding and flourishing in that job."
No evidence was offered to corroborate Horn's perception of her job performance at Adelphia. But, assuming she is precisely accurate in her perception, Horn makes no factual argument and offers no legal theory regarding the relevance of her success at Aldelphia to the question of whether Petitioner could provide accommodations recommended by Scholle without undue hardship. There was no evidence that Horn's supervisors at Adelphia are even aware of her bipolar disorder, or of Scholle's recommendations, nor is there evidence that they followed those recommendations.
Even if there were such evidence, it would not shed light on whether Petitioner acted unlawfully in terminating Horn. There is no evidence concerning what Horn does at Adelphia, but Adelphia is in the business of providing cable TV, not elementary education. There was no evidence that the workplaces, job descriptions and expectations, and evaluation processes employed at Adelphia and at the school district are in any way similar.
An elementary school teacher's job cannot be crafted so as to eliminate stress. Neither can a teacher be exempt from
the rules of conduct and the evaluation process which applies by law to all teachers.
At the most basic level, Horn cannot be "accommodated without undue hardship" because Horn and her psychiatrist insist that Horn requires part-time work to "ease her transition" back to teaching. But Petitioner does not offer part time elementary school teaching positions, with or without the numerous unrealistic accommodations envisioned by Scholle.
Petitioner established by clear and convincing evidence its part time teaching positions are limited at the elementary level to the areas of speech and language pathology, art, music and physical education where positions are shared between schools. There was no evidence that Petitioner offers part-time employment for elementary school academic teachers.
The very nature of the position requires that the teacher provide a consistent presence to her class throughout the school year, and that she be able to manage the myriad stresses inherent in dealing with elementary school aged children. Scholle's description of Horn's attention deficit disorder, standing alone, is sufficient to support a finding that nothing within the Petitioner's power to provide would enable Horn to perform the duties of an elementary school teacher.
Under the facts and circumstances of this case, Petitioner's determination that Horn could not be accommodated without undue hardship was reasonable, and her involuntary termination was lawful.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1).
Pursuant to the School Board's contract with the Palm Beach County Classroom Teachers' Association, it is Petitioner's obligation to prove the allegations of the Petition for Involuntary Resignation by clear and convincing evidence. Petitioner has fulfilled its burden of proof.
Under the facts and circumstances of this case, Petitioner has taken efforts to accommodate Horn which went well beyond the requirements of Policy 3.06. The accommodations Horn seeks could not be provided without undue hardship, that is to say, without altering Horn's job description to the point where it is no longer recognizable as that of an elementary school teacher.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment.
DONE AND ENTERED this 5th day of November, 2003, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2003.
Matthew Haynes, Esquire Chamblee, Johnson & Haynes, P.A.
Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board
Daniel J. Woodring, General Counsel Department of Education
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.
