The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
Findings Of Fact Rasberry holds Florida Teaching Certificate Number 069503 post-graduate rank II, valid through June 30, 1983, covering the areas of physical education, health education and junior college. At all times pertinent hereto, Rasberry was employed in the public schools of Duval County, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Rasberry was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Mr. James E. Thompson was principal of Matthew Gilbert during the summer school session of 1978. The usual procedure established by Mr. Thompson for the summer school physical education was to assign two teachers to the physical education program with only one of the teachers being responsible for attendance and grade records. Such was the case during summer school 1978. Rasberry was one of two teachers assigned to the physical education program. Mr. Rasberry was excluded from the requirement of reporting attendance and grades because of his other extensive duties. This procedure had the "blessing" of principal Thompson. Rasberry never submitted any paper work regarding the physical education course for summer school 1978. All grade reporting forms and attendance records were prepared and submitted by another instructor who in some cases signed Rasberry's name to the form. However, at no time did Rasberry sign his own name to any of these forms. While the evidence demonstrated that a high number of discrepancies exist in these reporting forms, there is no evidence to establish any connection between Rasberry and the inaccurate attendance data or the award of undeserved grades.
The Issue Whether Angel Villanueva (Respondent) imposed his personal religious views and views about gender identity on students during classroom and other instructional time, and, if so, should his employment with the Lee County School Board (Petitioner) be terminated as a result of his conduct.
Findings Of Fact Stipulated Facts Pursuant to the Joint Pre-hearing Stipulation, the following facts are admitted: Respondent imposed his personal religious beliefs and views regarding gender identity on students during classroom and other instructional time. Respondent made comments in the presence of students regarding the sexual preferences of individuals and professed that those that do not agree with him are wrong and would regret their lifestyle and suffer consequences later on in life. Respondent’s conduct unreasonably denied students access to diverse points of view, exposed students to unnecessary embarrassment and disparagement, and was unbecoming of a school district employee. Background The Board is responsible for hiring, terminating, and overseeing all employees in the school district. At all times material to this case, Respondent was employed by Petitioner as an JROTC instructor at East Lee County High School. Respondent has been employed by Petitioner since October 25, 2002. Respondent is an instructional employee and is governed by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). Respondent is employed pursuant to a professional services contract. On or about May 13, 2016, a concerned parent notified Petitioner of a video posted on Instagram which shows Respondent making comments in class regarding the sexuality of Caitlyn Jenner, the former Olympic decathlon gold medalist who recently came out as transgender. M.G. recorded the video and is responsible for posting the same on Instagram. The video, which is in evidence, speaks for itself. As a result of the concerns expressed by the parent, Petitioner initiated an investigation regarding Respondent’s alleged conduct. As part of the investigation, Petitioner interviewed M.G., who is a transgender student who recently “came out” regarding his gender. M.G. testified that he came out as transgender in March of 2016 and during this time he was a student in Respondent’s JROTC class. M.G. stated that Respondent made some initial comments to him in March of 2016, which led him to inform his guidance counselor, who asked M.G. to write his concerns in a statement. M.G. explained in his written statement that the statements made by Respondent regarding gay rights, religion, and homosexuality made him feel that generally he “wasn’t human,” that he was being “pushed down,” and that he did not like the way Respondent’s statement made him feel. M.G. also explained that when Respondent became aware that he was going to come out as transgender, Respondent reacted by saying, “Oh, no, you can’t do that” and told him that he will always be a female. M.G. testified that in April when he first told the guidance counselor about Respondent’s comments, he did not want anything bad to happen to Respondent. However, that changed when, according to M.G., Respondent’s conduct caused M.G. to start having feelings of depression. Respondent admits that he wanted to persuade M.G. not to come out as transgender. Respondent also admits that he made comments in the presence of students regarding the sexual preference of individuals, and further that he told students in his class that individuals who do not agree with him are wrong, will regret their lifestyle, and will suffer consequences later on in life. Respondent testified that his concern for M.G. stems from his personal beliefs as a devout Christian, and that if M.G. had informed Respondent that he was bothered by his comments, then he would not have been as aggressive in stating his opinions to M.G. Respondent acknowledges that he overstepped his boundaries and “should have stayed in his own lane.” During the final hearing, Respondent expressed genuine feelings of concern about M.G.’s well-being.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order concluding that: Just cause does not exist to terminate Respondent’s employment: and Just cause does exist to impose against Respondent discipline other than termination of employment. DONE AND ENTERED this 9th day of January, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2017.
Findings Of Fact The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.
The Issue Whether the Respondent should be terminated from her employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Miami-Dade County School Board is responsible for operating, controlling, and supervising all public schools in the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Klumpjan is employed by the School Board as a certified occupational therapist assistant. She has worked for the School Board in this position for approximately 17 years, first as an employee of an outside agency under contract with the School Board and, since 1988, as the School Board's direct employee. Certified occupational therapist assistants are classified by the School Board as educational support employees, and the terms of Ms. Klumpjan's employment are governed by the contract between Dade County Public Schools and the United Teachers of Dade. Occupational therapy is provided in the Miami-Dade County public schools to children who have been referred for the service by a physician. The goal of the therapy is to improve fine motor and functional living skills and, generally, to assist students in improving their ability to access education. When a student is referred for occupational therapy, the registered occupational therapist assigned to the student's school consults with the student's teachers and other professionals regarding the student's needs, evaluates the student, and develops an individualized occupational therapy program for the student. If the student is in the exceptional student education program, the occupational therapy program becomes part of the student's individualized educational program. Certified occupational therapist assistants carry out the treatment programs developed by registered occupational therapists, who supervise the work of the certified occupational therapist assistants. The formal job description for a certified occupational therapist assistant in the Miami-Dade County school system provides in pertinent part: BASIC OBJECTIVES The Certified Occupational Therapist Assistant (COTA) is responsible for the application of occupational therapist procedures under the direction of a Registered Occupational Therapist whose license in Florida is in good standing. The occupational therapist assistant must also be responsible for carrying out the responsibilities set forth by the supervisory [sic] of the physical and occupational therapist program. The occupational therapist assistant is responsible to the managing registered occupational therapist. JOB TASKS/RESPONSIBILITIES Implements treatment programs appropriate to the student's specific needs, as designated by the managing therapist. Meets periodically with managing occupational therapist for the purpose of reviewing the individual student's status. Documents any change in student status, treatment program, family visits, consultation with other health personnel. Established and maintains appropriate working relationships with school staff, parents, and health care personnel. Consults with managing occupational therapist prior to contacting the student's physician regarding problems and/or unusual changes in a student's program. Coordinates and schedules all treatment sessions for established students. Coordinates and schedules all treatment sessions for established students.[sic] Participates in DCPS inservice programs. Observes medical ethics. Conforms to DCPS policies and procedures. Assists in orientation and training of personnel new to the department. Maintains the therapy-area equipment by sanitizing and cleaning mats and other materials and equipment. Coordinates and/or assists in the preparation of materials for student use. Throughout the years she worked in the Miami-Dade County public school system, Ms. Klumpjan was considered a competent occupational therapist who worked well with the children in her care. Her job performance evaluations consistently rated her work as satisfactory. Nonetheless, since 1988, Ms. Klumpjan has worked at several schools in the Miami-Dade County public school system, having been transferred at the end of the 1989, 1990, 1991, 1992, and 1993 school years. Each time she was transferred, Louise Schmitt, one of the coordinators of the Miami-Dade County public school system's physical and occupational therapy program, discussed with her the reasons for the transfer, specifically, her inability to get along with her fellow therapists and other education professionals with whom she worked. Ms. Klumpjan was transferred to Arcola Lake Elementary School in July 1993. The students at Arcola Lake Elementary School are all in the exceptional student education program and have individualized educational programs. In meeting the needs of these students, the school staff, including the therapists and therapist assistants (referred to herein collectively as "co-workers"), work together as a team to provide the services necessary for the students to access education. At Arcola Lake Elementary School, Ms. Klumpjan and her co-workers also worked in close physical proximity with one another. In the opinion of a number of her co-workers, including her direct supervisor, Ms. Klumpjan's attitude and behavior made working with her very difficult. She was defensive and combative with her direct supervisor and with her co-workers, who were intimidated and threatened by her and avoided engaging her in conversation about either work-related or general subjects. Ms. Klumpjan constantly made negative comments regarding the actions of her co-workers and her supervisors, as well as about school procedures and policies. Ms. Klumpjan continually complained that no one would sit down and "hear her out" about her concerns. For several years, but especially in the months immediately prior to March 1997, Ms. Klumpjan's co-workers observed her become increasingly quick to anger about minor incidents, exhibit increasingly paranoid behavior, and express increasingly paranoid thoughts, including her often-stated conviction that there is a conspiracy against her among her co-workers, who she believes are agents of the FBI and the CIA. Her co-workers also observed her become more unreasonable, defensive, combative, and vindictive whenever anyone questioned her about her work or her ideas. Ms. Klumpjan talked incessantly about religion and also articulated increasingly bizarre thoughts, including her belief that certain school personnel were practicing voodoo and were engaged in spiritual warfare against persons in the school. When her ideas were challenged by co-workers, Ms. Klumpjan invariably insisted that her perception of reality was the correct one. On several occasions, both Ms. Klumpjan's direct supervisor and her co-workers were aware that she did not follow written occupational therapy programs developed by her supervisor or her supervisor's specific instructions regarding the therapy to be given to particular students. Nonetheless, Ms. Klumpjan's supervisor found it difficult to make any adverse comments or to criticize her work because Ms. Klumpjan did not respond reasonably; consequently, her supervisor simply avoided confronting Ms. Klumpjan, even though the supervisor recognized that her avoidance could impact negatively on the care given the students. Other therapists, therapist assistants, and teachers avoided consulting with Ms. Klumpjan regarding the care to be given students. Ms. Klumpjan's co-workers became particularly concerned when she discussed an incident in which a person in Broward County had gone to the office of his former employer and killed several of his former co-workers. Ms. Klumpjan stated that she understood why a person would do such a thing, and she attributed the motive for the shootings to the failure of people to listen to the killer's concerns. Because this was one of Ms. Klumpjan's frequent complaints about her supervisors and because of her increasingly bizarre behavior, Ms. Klumpjan's co-workers began to fear for their safety. In March 1997, several of Ms. Klumpjan's co-workers went to Louise Schmitt, one of the two coordinators of the Miami- Dade County public school system's physical and occupational therapy program, and told her that they found it impossible to work with Ms. Klumpjan and that they felt that her inappropriate behavior was becoming more pronounced, creating a great deal of tension among the staff at Arcola Lake Elementary School and causing them to fear for their safety. Dr. Fishman asked them to write letters to her describing the behaviors that caused them concern. When Ms. Schmitt reviewed the letters she received in response to this request, she contacted the School Board's Office of Professional Standards. On March 13, 1997, Ms. Klumpjan was relieved of her duties at Arcola Lake Elementary School and told to report for an alternate work assignment at the Region I administrative office. Thomasina O'Donnell, Director of the School Board's Office of Professional Standards, scheduled a Conference-for-the- Record for March 20, 1997. At the conference, the letters and concerns of Ms. Klumpjan's co-workers and supervisors were reviewed, and Ms. Klumpjan's fitness for duty was discussed. While not specifically denying the statements and behavior attributed to her in the letters, Ms. Klumpjan stated that her statements and behavior were "blown out of proportion" by her co-workers. At the March 20 conference, Ms. Klumpjan was given a list of doctors approved by the School Board and asked to select one to conduct an evaluation of her fitness to continue work. Her March 13, 1997, alternate work assignment to the Region I office was ratified, and Ms. Klumpjan was directed not to contact anyone at Arcola Lake Elementary School or anyone who had written a letter outlining their concerns about her. Finally, Ms. Klumpjan was given a supervisor's referral to the School Board's Employee Assistance Program. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any non-compliance with the stipulated activities would compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan chose not to participate in the Employee Assistance Program. However, on April 7, 1997, she was evaluated by Gary L. Fishman, D.O., a psychiatrist who has done "Fitness to Return to Work" evaluations for the School Board for the past ten years. Dr. Fishman spent approximately two hours interviewing Ms. Klumpjan and concluded that she suffers from a major psychiatric disorder evidenced by pronounced paranoid delusional symptoms. In his report, Dr. Fishman described Ms. Klumpjan as appearing "fragile, alone and isolated" and observed that she appeared to be out of touch with reality and completely unaware of the negative effect her comments and behavior had on her co-workers. In Dr. Fishman's opinion, Ms. Klumpjan was not capable of carrying out several of the job responsibilities assigned to certified occupational therapist assistants. Specifically, Dr. Fishman felt that, because of her problems dealing with others, her disturbed thinking patterns, and her impaired judgment, Ms. Klumpjan could not successfully consult with the managing occupational therapist, she could not establish and maintain appropriate working relationships with school staff and others, and she could not assist in training new personnel. Dr. Fishman counselled against allowing Ms. Klumpjan to resume her duties as a certified occupational therapist assistant until she received adequate medical and psychiatric care. Dr. Fishman recommended that Ms. Klumpjan receive a comprehensive medical examination from the physician of her choice, preferably an internal medicine specialist; that she have a complete psychological battery and profile prepared; and that she be referred for psychotherapy. A second Conference-for-the-Record was held on April 16, 1997, in order to review Dr. Fishman's report. Ms. Klumpjan was informed that she would not be allowed to return to work until she had met three conditions, which were essentially the recommendations made by Dr. Fishman: First, Ms. Klumpjan was told to have a comprehensive medical examination; second, she was told to obtain a complete psychological battery; and third, she was told to participate in a psychotherapy program. Ms. Klumpjan was informed that she could return to work only when cleared by Dr. Fishman, and she was again warned not to contact anyone at Arcola Lake Elementary School. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance with the stipulated conditions would result in the recision [sic] of site disciplinary action and compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan was absent without leave from her alternate work assignment beginning on May 16, 1997. Ms. Klumpjan was examined on June 25, 1997, by Larry Harmon, Ph.D., a clinical psychologist who works with the School Board's Employee Assistance Program and who was asked to evaluate Ms. Klumpjan's fitness to return to work. Dr. Harmon diagnosed Ms. Klumpjan with paranoid personality disorder; this diagnosis was based on his clinical interview, the results of Ms. Klumpjan's mental status exam, corroborative information, and the results of psychological testing. Although Ms. Klumpjan tested within the normal range on the psychological tests, Dr. Harmon is of the opinion that the results on several of the tests, including the Minnesota Multiphasic Personality-2, the Millon Clinical Multiaxial Inventory-III, and the Beck Depression Inventory, are not valid indicators of her true psychological condition. Dr. Harmon is particularly concerned about Ms. Klumpjan's very deep-seated delusions of persecution, together with her unshakable conviction that her delusions are true and accurately reflect reality. In his report, which is dated July 28, 1997, Dr. Harmon noted that Ms. Klumpjan refused to acknowledge that her behavior and comments in the workplace were inappropriate and would not agree to refrain from voicing her thoughts and suspicions to her co-workers, insisting that she has the right to speak the truth. Ms. Klumpjan rejected any suggestion that she should change her behavior at work and steadfastly attributed the "problem" to her co-workers. Consequently, Dr. Harmon predicted that the poor interpersonal work relationships would continue and, most likely, worsen. Dr. Harmon found that, even though Ms. Klumpjan is paranoid, she has no history of violence and is unlikely to pose a threat to the health and safety of the school staff and students. In his opinion, however, Ms. Klumpjan is unfit for duty because her symptoms of paranoia impair her ability to maintain the interpersonal work relationships necessary to carry out those job responsibilities of a certified occupational therapist assistant that require cooperation and working with others. Dr. Harmon also noted in his report that Ms. Klumpjan adamantly refused to consider seeking psychotherapeutic treatment; in his opinion, Ms. Klumpjan's symptoms will worsen unless she receives such treatment. Ms. Klumpjan was examined by her physician on July 1 and 2, 1997, and the results of the examination, laboratory work, and EKG were sent to the School Board's Office of Professional Standards. A Conference-for-the-Record was held on August 19, 1997, for the purpose of addressing Ms. Klumpjan's medical fitness to perform her assigned duties and her future employment in the Miami-Dade County public school system. At the conference, Ms. Klumpjan was again advised that services were available from the School Board's support referral agency, the Employee Assistance Program. She was given the opportunity to resign her position with the Miami-Dade County public school system, but she was directed to arrange for medical leave if she chose not to resign, with the caveat that she must apply for leave by September 19, 1997, or face an employment action for abandonment of position. Ms. Klumpjan was encouraged to seek psychological treatment and was advised that she would be considered for re-employment only when she had successfully completed treatment and received a medical clearance from Dr. Harmon. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance, with the stipulated condition, would result in District disciplinary measures to include dismissal." In a memorandum dated October 15, 1997, entitled "Employment Intention," Dr. O'Donnell notified Ms. Klumpjan that, because she had been absent from her employment since May 16, 1997, she must notify her worksite immediately regarding her employment intentions. Dr. O'Donnell also directed Ms. Klumpjan to implement one of four options: She could comply with the conditions of employment imposed at the August 19, 1997, Conference-for-the-Record; she could notify the Office of Professional Standards of the date she intended to return to work; she could resign from her employment with the Miami-Dade County public school system; or she could initiate the retirement process. Ms. Klumpjan did not respond to this memorandum and, in a letter dated October 27, 1997, she was informed that she had been absent from her employment with the Miami-Dade County public school system without authorized leave. She was further advised that the School Board would take action to dismiss her from her employment for willful neglect of duty and that, if she did not request a review of the facts relating to her termination within 10 days of the date she received the letter, the matter would be submitted to the School Board for final action. In a letter dated November 7, 1997, to Dr. Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, Ms. Klumpjan stated that she had not been willfully absent from her duties but was absent because of actions taken against her by the Office of Professional Standards. She explained that she was abruptly removed from her duties at Arcola Lake Elementary School and told to report for work to Ms. Martha Boden. Ms. Klumpjan stated that she was willing to return to her duties as a certified occupational therapist assistant on November 10, 1997. Nothing further was heard from Ms. Klumpjan, and, at its January 14, 1998, meeting, the School Board suspended her from employment with the school system, without pay. Ms. Klumpjan had not, as of the final hearing, participated in psychotherapy, resigned her position, or applied for medical leave. The evidence presented by the School Board is sufficient to establish that Ms. Klumpjan committed gross insubordination, that she committed misconduct in office, that she is incompetent because of incapacity, and that she was willfully absent from duty without leave. These violations are sufficient to constitute just cause for the termination of her employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order Sustaining Marilyn L. Klumpjan's suspension without pay, Terminating the employment of Marilyn L. Klumpjan for just cause, and Dismissing Count IV of the Notice of Specific Charges dated February 9, 1998. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998.
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination in this proceeding is whether Respondent's award of a contract pursuant to a request for proposal was arbitrary, capricious, or beyond the scope of Respondent's discretion.
Findings Of Fact Respondent, like other public school systems in Florida, is required to provide therapy services for students in need of such services. The demand for therapy services far exceeds the available therapists. The shortage of therapists is expected to worsen in the foreseeable future. Respondent historically has been unable to obtain a sufficient number of therapists by direct hire. Respondent has relied on contract services to obtain therapists. Such contract services have been provided by Professional Health Care Services ("Professional"), Cross Country Health Care ("Cross Country"), and Petitioner. In November, 1992, Petitioner was awarded a contract to provide occupational and physical therapy services for the remainder of the 1992-1993 school year. Petitioner provided the number of therapists required by Respondent in a timely manner. Virtually all of the therapists provided by Petitioner during the 1992- 1993 school year were foreign nationals. Some of the therapists had inadequate written and verbal communication skills in the English language. The lack of such communication skills created problems for the faculty, staff, and students, and was the subject of complaints by some parents. Some of the therapists provided by Petitioner during the 1992-1993 school year had no transportation to travel from school to school to perform their regular duties. Respondent determined that the supervision provided by Petitioner was inadequate in light of the communication and transportation problems peculiar to some of the foreign nationals Petitioner provided as therapists. When competent therapists are provided through contract services, Respondent typically attempts to hire such therapists as full time employees in the school system. Provisions in the contract between Petitioner and the therapists provided by Petitioner make it economically impractical for Respondent to hire competent therapists provided by Petitioner. The contract prohibits a therapist from competing with Petitioner (the "non- compete clause") and, alternatively, requires that Petitioner be reimbursed for costs incurred in obtaining the therapist's work permit and temporary license and requires that Petitioner be compensated based on a percentage of an individual therapist's salary. Neither the therapist nor Respondent typically have the funds necessary to make such payments in lieu of the non-compete clause. Petitioner does not permit Respondent to evaluate the therapists provided by Petitioner prior to accepting the therapists. Respondent has no opportunity to interview a therapist and make an independent determination of the therapist's communication skills or means of transportation. For the 1993-1994 school year, Respondent issued a request for proposals to provide 11 occupational therapists and 10 physical therapists who were permanently licensed or, alternatively, a combination of therapists and therapist assistants. The request for proposal was issued to approximately 85 providers. The only providers that responded were Petitioner, Cross Country, and Professional. Each company that submitted a proposal had a prior business history with Respondent. Respondent is familiar with the management personnel of each company. The successful proposal was selected based on three categories of information provided in each proposal. The categories were: therapist or agency qualifications; scope of services; and cost of services. Each responsive company was required to provide information in regard to: the company itself; the availability of therapists, their license status, and their supervision; the costs to Respondent; and the ability of Respondent to recruit the therapists provided by the company. Representatives from each of the three companies that submitted proposals were invited to be interviewed concerning their company's respective proposal. Each representative was interviewed by members of Respondent's administrative staff including Ms. Sue Hays, Supervisor of Occupational and Physical Therapy, Ms. Liz Argott, Director of Exceptional Student Education, Ms. Myrna Robinson, General Director of Special Instructional Services, Mr. Bill Borrer, Supervisor of Purchasing, and Ms. Mary Gillette, Director of Physical/Mental Health and Social Services. Each representative was asked questions that were applicable to all three companies as well as questions that were unique to the specific proposal of each company. The three main issues discussed with Petitioner concerned communication problems posed by foreign nationals, temporary licensing, and adequate supervision. Respondent had previously advised Petitioner to pursue its proposal even though Petitioner represented that virtually all of its therapists would be temporarily licensed. At the interview following the submission of proposals, however, Petitioner notified Respondent that Petitioner would agree to be a secondary vendor only if Petitioner had a minimum of 10 therapists working for the School Board. At the conclusion of the interviews, each of the companies submitting proposals was awarded a numerical score. Cross Country received a score of 410 points. Professional received a score of 331 points. Petitioner received a score of 296 points. Petitioner scored lowest among the three companies that submitted proposals. Cross Country recruits approximately 80 percent of its therapists within the United States. Cross Country provides transportation and housing for its therapists. Both Cross Country and Professional provide permanently licensed therapists. Petitioner's proposal was not the lowest in cost. Petitioner would have charged an additional $1.80 per hour for each therapist in order to provide the supervision required under the circumstances. Moreover, the difference between Petitioner's actual score and a perfect score of 30 for cost of services would not be sufficient to raise Petitioner's score by the amount needed to give Petitioner the second highest score. The matter was submitted to Respondent on July 20, 1993. The contract for primary vendor was awarded to Cross Country and the contract for secondary vendor was awarded to Professional. Respondent's decision was reasonable under the circumstances and was not arbitrary and capricious. Cross Country was the lowest and best proposal. Respondent followed its specifications in the request for proposals and properly utilized the evaluation system prescribed in the request for proposals. Petitioner would have provided temporarily licensed therapists in violation of the specifications in the request for proposals. Respondent did not implicitly waive the express requirement for permanently licensed therapist when Respondent advised Petitioner to pursue its proposal. The request for proposal also sought proposals for assistant therapists which Petitioner was willing to recruit. Even if Respondent was willing to accept temporarily licensed therapists from a secondary vendor, Respondent did not learn until the interview with Petitioner that Petitioner was unwilling to function as a secondary vendor unless Petitioner had a minimum of 10 therapists employed by Respondent. Respondent had a legitimate concern over the ability of therapists provided by Petitioner to communicate verbally and in writing in the English language. While the parties to this proceeding dispute the significance of that issue, Respondent would not have the right to interview prospective therapists and make an independent determination of the ability of the therapist to communicate at a level necessary to provide effective services in the school system. For the same reason, Respondent had no way to make an independent determination of whether a prospective therapist had adequate transportation to perform the services required by Respondent. Respondent historically has been unable to obtain a sufficient number of therapists through direct hires. Respondent was effectively precluded by the terms of the contract between Petitioner and the individual therapists from hiring competent therapists in permanent positions within the school system. The demand for therapy services far exceeds the supply of therapists. The shortage of therapists is expected to worsen in the foreseeable future. The ability to hire competent therapists as permanent members of the staff is a reasonable and legitimate factor for Respondent to consider in determining the highest and best proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's written formal protest. RECOMMENDED this 29th day of September, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4486BID Petitioner's Proposed Findings Of Fact. 1.-3. Irrelevant and immaterial 4.-11. Accepted in substance Rejected as inconsistent with credible and persuasive evidence Accepted in substance Irrelevant and immaterial 15.-18. Accepted in substance Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence 21.-22. Accepted in substance 23.-27. Irrelevant an immaterial Accepted in substance Rejected as inconsistent with credible and persuasive evidence 30.-31. Accepted in substance 32. Rejected for lack of credible and persuasive evidence 33.-35. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance 38.-41. Rejected as inconsistent with credible and persuasive evidence 42. Irrelevant and immaterial 43.-44. Accepted in substance 45.-46. Rejected as inconsistent with credible and persuasive evidence 47.-48. Irrelevant and immaterial 49. Rejected as inconsistent with credible and persuasive evidence 50.-51. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance, but credible and persuasive evidence showed that particular therapists who were foreign trained in fact caused some problems for Respondent Rejected as inconsistent with credible and persuasive evidence Rejected as inconsistent with credible and persuasive evidence Accepted in substance Respondents' Proposed Findings Of Fact. Accepted as part of preliminary statement Irrelevant and immaterial Rejected as recited testimony 4.-9. Accepted in substance 10.-15. Rejected as recited testimony Accepted in substance Rejected as recited testimony COPIES FURNISHED: Dr. Walter L. Sickles, Superintendent School Board of Hillsborough County Post Office Box 3408 Tampa, Florida 33601-3408 M. Teresa Harris, Esquire Post Office Box 90 St. Petersburg, Florida 33731 W. Crosby Few, Esquire Few & Ayala 109 North Bush Street, Suite 202 Tampa, Florida 33602 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida Sydney H. McKenzie General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent's employment with the District School Board of Taylor County, Florida, should be terminated.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She was, when first employed, a teacher at Gladys Morse Elementary School and then was employed as a teacher at Taylor Elementary School. Until January 19, 2005, she taught at Taylor Elementary School. Her employment was pursuant to a professional services contract. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or have a physical handicap or handicaps. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities, she is County Coordinator for the Special Olympics. The School Board operates the school system in Taylor County. The School Board is a party to a Master Teacher Contract (Master Teacher Contract), with The Taylor Education Association, which is an affiliate of the Florida Education Association, the American Federation of Teachers, the AFL-CIO, and the National Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relations between the School Board and Dr. Whalen. Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crises Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction-Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, the act of lying upon a child could prevent a child from breathing which could result in injury or death. Ms. Kriedler teaches CPI throughout the District. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. A memorandum dated April 7, 2003, and signed by Principal Sylvia Ivey, was presented to Dr. Whalen by Principal Ivey. The memorandum addressed conversations that Dr. Whalen had with two of her colleagues on April 3, 2003. The memorandum recited that these conversations raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video- taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The record reveals that Dr. Whalen's classroom was already being video-taped as early as November 20, 2002. It is certain that the classroom was being video-taped daily from April 2003, until the end of the school year. By January 2005 the practice of video-taping Dr. Whalen's classroom on a daily basis had ended. The incident giving rise to this case was not video-taped. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your Classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. During January 2005, a school resource officer, who is a deputy sheriff, was available should it become necessary to physically restrain a child who was a threat to himself or herself or others. On January 19, 2005, J.R. a female, was a student in Dr. Whalen's classroom. J.R. was ten years old and in the third grade. J.R. had been a student in Dr. Whalen's classroom since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair at the hearing. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student when once he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered the CD player and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Vincent Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed J.R.'s back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten under the circumstances described. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks are consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or wound like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding as to the origin of the marks on J.R.'s back. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is found that the assault on Dr. Whalen was sudden and unexpected. J.R. was suspended from Taylor Elementary School for ten days following this incident. Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. Dr. Whalen received memoranda of counseling on December 2, 2002, and April 7, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Whalen be immediately reinstated to her former position without diminution of pay or benefits, pursuant to the Master Teacher Contract. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of June, 2005. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Oscar M. Howard, Jr., Superintendent Taylor County School Board 318 North Clark Street Perry, Florida 32347
