05-001802 Miami-Dade County School Board vs. Joan E. Williams Status: Closed Recommended Order on Tuesday, April 25, 2006.

Summary: Respondent`s employment should be terminated based on incompetency and insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1802

)

JOAN E. WILLIAMS, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 17 - 20, 2005, and on December 13 - 15, 2005, in Miami,

Florida, before Claude B. Arrington, a duly - de signated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Madelyn Schere, Esquire 1

Ana I. Segura, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether Respondent ’s employment as a school psychologist

should be terminated on the grounds set forth in the Notice of

Specific Charges.

PRELIMINARY STATEMENT

At its regular meeting on May 18, 2005 , Petitioner voted to

suspend Respondent’s employment without pay pending the

termination of her employment as a school psychologist.

Respondent timely requested a formal admi nistrative hearing to

challenge the proposed action, the matter was referred to DOAH,

and this proceeding followed.

Thereafter, Petitioner filed its Notice of Specific Charges

that alleged that Respondent was guilty of incompetency, as

defined by Florida Administrative Code Rule 6B - 4.009(1)(a) and

that she was guilty of insubordinat ion or willful neglect of

duty, as defined by Florida Administrative Code Rule

6B - 4.009(4).

At all times relevant to this proceeding, Respondent was a

school psychologist assigned to Petitioner’s Region 3 (R3),

which has been, at times, also referred to as Access Center 3.

Respondent works closely with Child Study Teams (CST s ) to

determine student’s eligibility for and/or appropriate placement

in Petitioner’s Exceptional Student Education (ESE) program.

At the formal hearing, Petitioner presented the te stimony

of the following witnesses who were either employees or former

emp loyees of Petitioner. The name of each witness is followed

in parentheses with the position he or she held at the times

relevant to this proceeding. Those witnesses were: Martha

B oden (former director of operations for R3 ); Gigi Gilbert

(school princip al); Edith Norniella (school princi pal); Myra

Silverstein (former director of the ESE program for R3); Lilia

Angela Dob ao (assistant school principal); Gail Senita (school

principal) ; Cynt hia Flanagan (school principal); Ni ck JacAngelo

(school principal); Orlando B. Milligan (school principal);

Luethel Boyd (ESE departmen t chairperson at a high school);

Marcia Gams - Prich ep (staffing specialist for R3); Deborah Wilson

(assistant school principal) ; Nicholas Emmanuel (school

principal) ; Rosa R. Simmons (school principal); Teresa Simas

(staffing specialist R3); Mary Paz (instructional supervisor for

R3) ; Judith Anton (school principal) ; Dyona McLean (school

principal); Aaron L. Enteen (scho ol principal) ; Pamela S anders -

White (school principal); Dr. Sue Lee Buslinger - Clifford

(instructional supervisor of psychological services for the

School District) ; Danysu Pritchett (former administrative

director of Petitioner’s Office of Professional Sta ndards) ;

Robert Lawrence Kalinsky (administrator director for R3) ; Lucy

Iturrey (director of Petitioner’s Office of Professional

Standards ); Gail Pacheco (chairperson of the Psychologi cal

Services Department for R3); and Joseph Jackson (administrative

dire ctor for Petitioner’s Division of Psychological Services),

and Respondent. Petitioner prese nted 253 sequentially - numbered

E xhibits, each of which was admitted into evidence with the

exception of E xhibits 108, 123, 135, 171, 201, 219, 249, 250,

and 251.

Respondent testified o n her own behalf and presented the

additional testimony of the following witness es: Leila Perez

(secretary R3); Robert Pittman (scho ol psychologist assigned to

R3); Lisa Rolling (secretary for R3) ; Li llian Cooper (school

principal); Rosetta Vicke rs (children’s advocate for R3); Akim

Glass (exceptional student education specialist of a middle

school); Benjamin Isom (clinical ps ychologist in private

practice); and Maria Mitchell (a learning disability te acher).

Respondent offered 42 E x hibits, each of which was admitted into

evidence. Pursuant to a stipulation of the parties Respondent

took the deposition testimony of Irma Hutchinson (school

psychologist assigned to R3) and Susan Renick - Blount (former

director of R3), subs equent to the hearing . Th o se two

depositions are admitted into evidence as Respondent’s Exhibits

43 and 44, respectively.

The t ranscript of the proceedings conducted October 17 - 20,

2005, was filed with DOAH on November 15, 2005. That portion of

the t ranscript consis ts of four volumes. The t ranscript of the

proceedings conducted December 13 - 15, 2005, was filed with DOAH

on January 18, 2006. That portion of the t ranscript consists of

three volumes. The t ranscript of the proceedings correctly

chronicles the witnesses who testified, their testimony, the

exhibits that were admitted into evidence, as well as all

objections and rulings thereon.

The parties filed Proposed Recommended Orders, which have

been duly - considered by the undersigned in the preparation of

this Re commended Order.

FINDINGS OF FACT

1 . At all times material hereto, Respondent was a school

psychologist employed by Petitioner pursuant to a continuing

contract. Respondent was first employed by Petitioner in 1968

as a guidance counselor. In 1974 she began her employment as a

school psychologist. At all times relevant to this proceeding,

Respondent was a member of the United Teachers of Dade (UTD) and

subject to the provisions of the collective bargaining agreement

between Petitioner and UTD.

2. At all times materia l hereto, Petitioner was a duly -

constituted school board charged with the duty to operate,

control and supervise all free public schools within the school

district of Miami - Dade County, Florida, pursuant to Article IX,

Constitution of the State of Florida, and Section 1001.32 ,

Florida Statutes (2005) . 2

3. For administrative purposes, Petitioner’s school

district is divided into r egions. R3 is the region to which

Respondent has been assigned at the times relevant to this

proceeding.

4. In R3, each school, whether an elementary, middle, or

high school, has a CST. Each such team includes an

administrator, a school counselor, one or more special education

teachers, a school psychologist, and other specialists as

appropriate. Typically, a child is referred to the CST because

he or she is experiencing difficulties, such as academic or

behavioral problems. The child’s case is discussed at a CST

meeting and the CST decides whether to refer the child to a

school psychologist for a psychoeducat ional evaluation. If that

decision is in the affirmative, certain background information

is put together and that information is sent to the R3 office to

be opened as a case file. The assigned school psychologist

receives the case file, performs a psycho logical evaluation on

the child, writes a report detailing his or her findings, and

returns the case file to a staffing specialist. The staffing

specialist schedul es another CST meeting to determine the next

appropriate step in the process, which may resu lt in the

preparation of an Individualized Education Plan (IEP) for the

student.

5. Petitioner has adopted a manual titled “Psychological

Services Procedures Manual” (the Manual) that defines the

psychological services provided by Petitioner and delinea tes the

procedures school psychologists are to follow in testing,

evaluating, referring and placing students who qualify for the

ESE program. The Manual also provides an evaluation report

format that school psychologists are to follow.

6. School psycho logists are required to keep certain

records and file certain monthly reports. The y are required to

report t he number of evaluations and other services performed

during the month on a form title d “Psychological Services

Monthly Report.” The y are also req uired to keep a case l og by

school for each student with an open case file at that school .

The c ase l og contains the names of children whose cases are

opened at each school and the status of the case . The case l og

is updated monthly to reflect the status of each case.

7. A school psychologist is an essential member of the CST

and is a critical player in the development of IEPs for students

who qualify for ESE. Time constraints are placed on the CST and

on each school psychologist. Petitioner’s policy i s that the

period from the initial referral of a child to a CST to the

development of the child’s IEP (for those children who qualify

for ESE services) should not exceed 90 days. Since September

2004, Florida Administrative Code Rule 6A - 6.0331 has require d

that students who are suspected of having a disability must be

evaluated within a period of time, not to exceed 60 school days

in which the student is in attendance. School psychologists are

instructed to make every effort to complete the psychological

evaluation report and to submit the report for typing within

five days after the evaluation is completed.

8. Typically, each school psychologist in R3 is

responsible for two or three assigned schools. In an average

week, school psychologist s spend most of their time at their

assigned schools, where they are required to keep the same work

hours as the instructional personnel assigned to that school.

At the school, the school psychologist meets with other school

personnel (whether informally or as part o f a CST) and evaluate s

students.

9. Each school psychologist has at least one day a week at

the R3 office, where he or she writes r eports and consult s with

other R3 personnel as needed. During the R3 office day, new

cases are assigned and special assignm ents are made.

EVALUATIONS THROUGH SCHOOL YEAR 200 1 - 0 2

10. From the school year 1990 - 91 through the school year

2000 - 01, Martha Boden was Respondent’s supervisor. For each of

those school years, Ms. Boden evaluate d Respondent’s

performance. During th ose years, Ms. Boden received a myriad of

complaints about Respondent’s job performance. Several school

principals testified that they would not want Respondent to

serve as their school psychologist based on unfavorable

experiences with Respondent during the school years Ms. Boden

served as her supervisor. Despite the complaints she received

about Respondent, Ms. Boden evaluated Respondent’s performance

as being acceptable for each year Ms. Boden supervised

Respondent. Each annual evaluation of Responden t by Ms. Boden

was a summative evaluation in the sense that Ms. Boden

considered all information, both good and bad, that she had

about Respondent’s job performance. Ms. Boden’s conclusion that

Respondent was an acceptable employee for each of the years t hat

she supervised Respondent is persuasive. The evidence presented

by Petitioner as to Respondent’s job performance during the

school years 1990 - 91 through 2000 - 01 does not establish the

allegations set forth in the Notice of Specific Charges. That

evid ence does, however, establish that Respondent’s job

performance was problematic and provides a context for

subsequent evaluations.

11. Ms. Boden exerted considerable effort in attempts to

help Respondent improve her job performance. Respondent did not

take advantage of the help Ms. Boden offered. Respondent knew

from Ms. Boden that she was required to produce timely, accurate

psychological evaluations and monthly reports.

12. Myra Silverstein supervised and evaluated Respondent

for the 2001 - 02 school year. That evaluation was also a

summative evaluation and also concluded that Respondent was an

acceptable employee. Ms. Silverstein’s conclusion that

Respondent was an acceptable employee for the year she

supervised Respondent is persuasive. The eviden ce presented by

Petitioner as to Respondent’s job performance during the 2001 - 02

school year does not establish the allegations set forth in the

Notice of Specific Charges. That evidence does, however,

establish that Respondent’s job performance continued to be

problematic and provides a d d itional context for subsequent

evaluations.

DELAYED EVALUATIONS AND REPORTS

13. During the school years subsequent to the 2001 - 02

school year Respondent failed, on multiple occasions, to timely

evaluate and complete repo rts for children who were being

evaluated for ESE services. At Olinda Elementary School, a

student was tested by Respondent on February 23, 2004 and

Respondent did not close the case until January 12, 2005.

Partly because of that delay, the principal of Olinda Elementary

School requested that a school psychologist other than

Respondent be assigned to her school. During the 2004 - 05 school

year, Respondent was assigned to evaluate two students at Miami

Springs Elementary School. More than a year passed be tween the

time Respondent received her assignment and the time she did the

testing. During the 2003 - 04 school year, Respondent was

assigned a case in January 2004. Respondent did not do the

testing on this student until July 2004 and she did not complete

her report until January 2005. At Orchard Villa Elementary,

Respondent was assigned a case during the summer of 2004. As of

June 2005, the case had not been closed. There was no

justification for the lapses in time between the dates of

assignment and t he dates of completion of Respondent’s reports. 3

14. The CSTs could not determine appropriate strategies

for the students Respondent was assigned to evaluate without a

psychological report. Respondent’s lapses between her

assignments and the completion of her reports delayed the

staffing of those students and delayed the development of and

the provision of appropriate services for those students.

15. Mary Paz, the Instructional Supervisor at the R3

office became Respondent’s supervisor in March 2004. After she

assumed that responsibility, Ms. Paz received multiple

complaints from principals and parents as to Respondent’s

repeated failures to timely complete evaluations and/or reports.

In May 2004, Ms. Paz received a memorandum from an assistant

princi pal at Banyan Elementary School regarding an incomplete

evaluation report done by Respondent. Material in the case file

established that the Bender Gestalt evaluation was administered,

but the Respondent’s report made no mention of that diagnostic

tool. Another school psychologist was called in to complete

Respondent’s report.

16. Pamela Sanders - White was the principal of Orchard

Villa Elementary School during the 2004 - 05 school year.

Respondent was the school psychologist for that school during

that school year. Ms. Sanders - White received complaints from

teachers, parents, and students pertaining to Respondent’s

failure to timely complete her work. Ms. Sanders - White

requested that a school psychologist other than Respondent be

assigned to her school for the school year 2005 - 06.

CONFRONTATIONS AT IEP MEETINGS

17. Petitioner presented evidence that Respondent argued

with other professional s during several CST meetings and that

she walked out of one such meeting. Petitioner also presented

evidence t hat a few of Respondent's professional opinions were

rejected by other professionals. That evidence , while accepted

as credible, did not prove or tend to prove that Respondent was

incompetent or that she was insubordinate, which are the charges

alleged in the Notice of Specific Charges. Consequently, the

proposed findings in paragraphs 22, 23, 25, and 26 of

Petitioner's Proposed Recommended Order have not been considered

by the undersigned in reaching the ultimate findings of this

Recommended Order.

INA CCURATE REPORTS

18. Gail Pacheco has been the Chairperson for

Psychological Services in R3 since the 1989 - 90 school year. She

is not a supervisor of the R3 school psychologists, but she

works with their supervisors as the supervisor’s designee in

resolvi ng problems. At Joseph Jackson’s request after he became

Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports

prepared by Respondent and monitored all 28 school psychologists

in R3 for compliance with time frames for testing, preparation

of ps ychological reports, and case closure. Each of the 30

reports prepared by Respondent and reviewed by Ms. Pacheco had

at least one error. 4

19. On May 28, 2003, Mr. Jackson requested all school

psychologists, including Respondent, to select a sample

evalua tion report for review by the respective region

chairperson. Respondent did not timely comply with

Mr. Jackson’s request. When she did comply, the evaluation

report she submitted contained numerous errors, including

Respondent’s erroneous conclusion as t o the student’s

qualification for services. 5

20. In December 2003 Dr. Sue Lee Buslinger - Clifford became

the Instructional Supervisor of Psychological Services at the

District office. Her job duties included the supervision of all

school psychologists, wh ich include d the authority to give

directives to all school psychologists, including Respondent.

Dr. Buslinger - Clifford’s testimony, considered with the other

evidence presented by the parties, established that Respondent

failed to follow District procedu res in the use of two

personality or emotional assessments instruments in evaluating

students. Respondent’s reports were not individualized for each

student, with most of her reports using similar, standardized

language. In the academic assessment of stu dents, the reports

should identify the needs of the child, the skill level of the

child, and specific recommendations. Respondent’s reports often

contained the same recommendations written in general, non -

specific language that did not recommend the imple mentation of

specific services for the student. Some reports were missing

information and others contained limited information that was

not helpful for the teacher and the members of CSTs.

21. In addition to typographical and grammatical errors,

Respon dent’s reports contained test use and procedural errors.

On one evaluation report Respondent misinterpreted evaluation

data, which caused her to reach an erroneous conclusion as to a

student’s eligibility for services . 6 On some occasions,

Respondent’s na rrative report was inconsistent with the report

of the evaluation data.

22. Respondent had difficulty managing her time. Her

student evaluations generally took longer than they should have.

23. Dr. Buslinger - Clifford reviewed certain reports

submitted by Respondent and advised Respondent as to corrections

that needed to be made. Respondent did not comply with that

advice.

24. Mr. Jackson, as Respondent’s supervisor, reviewed her

monthly reports for August through October, 2003, and determined

that Re spondent’s productivity was greatly below that of the

average school psychologist, despite having a similar caseload.

Mr. Jackson further determined that Respondent had a back log

that was growing each month; that some of the reports were

incomplete; and t hat some of the reports were inconsistent or

misleading. On October 31, 2003, Mr. Jackson notified

Respondent in a memorandum of serious concerns that he had

related to her poor job performance, and he directed Respondent

to provide him with answers to ce rtain questions pertaining to

her performance 7 no later than November 10, 2003, at 9:00 a.m.

25. Mr. Jackson requested information as to six specific

issues. First, he wanted a written response as to an alleged

incident at Westview Middle School during which Respondent got

into an argument with a staffing specialist in front of a

student’s parents during a CST meeting. Second, he wanted to

know why three identified cases had not been completed in a

timely manner and ordered her to attach the psychologi cal

reports for those students with her response. Third, he wanted

her to explain her lack of productivity and provide Medicaid

forms for nine students who she had evaluated. Fourth, he

wanted Respondent to provide Ms. Pacheco with a copy of a recent

psy chological report so Ms. Pacheco could review it. Fifth, he

wanted an explanation as to why she had not provided a

psychological report for review when such a report had been

requested of her on three occasions. Sixth, he wanted

Respondent to explain why she continued to use an instrument

(WIAT) that she allegedly could not score.

26. On November 7, 2003, Respondent responded to

Mr. Jackson’s memorandum and requested a 60 - day extension of the

deadline for her response to his questions. Respondent’s

re sponse included the following:

You have demanded a written response in

five (5) days to a long list of you [sic]

allegations, to which you offered not [sic]

proof, only conjecture, opinions, and a

partially extracted table; that was

delivered by register ed mail on Saturday

afternoon at my residence. I feel sure that

this memorandum was written and typed on the

MDCPS [Miami - Dade County Public School] time

clock. No consideration was given for my

time clock, or the release of my daily time

schedule to co mplete such a task.

The sixty - day extension period is

therefore needed to consult my archives in

order to give you a detailed and accurate

response. I need ample time to secure

financial expense; legal advisement and

representation; and a typist (all of which I

will be seeking reimbursement), before

undertaking such a task.

27. Mr. Jackson gave Respondent until November 14, 2003,

to respond to his memorandum. That was a reasonable deadline.

28. Respondent did not meet the deadline established by

Mr. Jackson. On December 17, 2003, Respondent responded in

writing to the questions Mr. Jackson had asked in his

memorandum. 8 Mr. Jackson was not satisfied with Respondent’s

response and continued to have concerns about her job

performance. Mr. Jackson’s d issatisfaction with Respondent’s

response was reasonable. His continued concerns about her job

performance were also reasonable.

JANUARY 2004 CONFERENCE FOR THE RECORD

29. On January 15, 2004, Mr. Jackson had a Conference for

the Record (CFR) with Respo ndent. A CFR is a meeting of record,

held by a supervisor with an employee who is or may be under

investigation for possible disciplinary action, to apprise the

employee of the review of the record and the possible

disciplinary action, and to give the emp loyee an opportunity to

respond or append the record.

30. At the CFR conducted January 15, 2004, Mr. Jackson

discussed his continued concerns with Respondent and considered

her responses (both written and verbal). Mr. Jackson prepared a

memorandum date d January 22, 2004, which summarized the events

that transpired at the CFR held January 15, 2004. In the

memorandum, Mr. Jackson gave Respondent the following

directives:

Your are to be professional and courteous

to all staff at all times. You are also to

represent the school system in a positive

light at all times. This directive begins

immediately and continues indefinitely.

You are to complete evaluations of each

child within a week of the beginning of

testing, unless approved by the Executive

Dir ector or the Instructional Supervisor of

the Division of Psychological Services or

the ACCESS Center 3 Chairperson. Additional

testing must be approved by the Chairperson

which may be suggested by you and/or the

Chairperson. The additional testing is to

be completed within one week of notification

of the determination for more testing. A

completed report of each evaluation must be

submitted for typing to the ACCESS Center

within two weeks after the evaluation is

completed. (Day that the last assessment

instrument has been administered.) All

evaluations are to be correctly reflected on

your monthly report (log). This directive

is ongoing and will be reviewed by the 10 th

of each month, for the next three months.

Your monthly reports/logs are to reflect

increased productivity beginning with the

February report, averaging a minimum of 10

psychoeducational evaluations per month,

unless approved by the Executive Director.

Your productivity will be reviewed monthly.

If you do not have the assigned cases, y ou

are to request cases from your ACCESS Center

chairperson.

You are to complete a minimum of 10

psychological evaluations during the next

four weeks. The Psychological Services

Monthly Report, with a copy of the completed

typed report for each of th e 10 evaluations

attached, is to be submitted to the office

of the Executive Director of the Division of

Psychological Services on February 27, 2004.

All psychological evaluation reports are

to be completed and delivered to Ms. Gail

Pacheco for review wi thin two weeks after

the day the last assessment instrument has

been administered. All corrections are to

be completed within two school days after

they have been received from Ms. Pacheco.

No case should be given to the staffing

specialist for staffing until the case has

been approved by Ms. Pacheco. This

directive is to be implemented immediately

and will be reviewed randomly by the

Executive Director of the Division of

Psychological Services during the next six

weeks. Reviewing of all reports by the

ACCESS Center Chairperson and timelines for

completion will be adjusted as needed.

You were referred to the Employee

Assistance Program through a Supervisory

Referral for performance of professional

duties related to assignment failures.

These directive s are in effect as of the

date of the conference and will be

implemented to prevent adverse impact to

your professional status with Miami - Dade

Public Schools.

31. In the memorandum dated January 22, 2004, Mr. Jackson

advised Respondent that he would rev iew the information in the

CFR with appropriate school officials and that he would take the

following additional action:

All directives will be monitored as stated

in the conference and in this memorandum.

If you successfully complete the

directives, t he requirements of the

directives will be adjusted to reflect the

requirements of all ACCESS Center based

school psychologists.

If you do not successfully complete the

directives, additional directives will be

added to assist you in becoming the desire d

professional you are capable of being.

MARCH 2004 CFR

32. Mr. Jackson conducted a second CFR with Respondent on

March 19, 2004.

33. Petitioner established that there continued to be

concerns with all six of the directives given to Respondent

follo wing the Janu ary 2004 CFR. As to d irective 1, Mr. Jackson

continued to receive complaints as to Respondent’s interaction

with school - based staff. Petitioner established that Re spondent

failed to comply with d irectives 2, 3, 4, and 5. Respondent did

not timely complete the evaluation of each child to whom she was

assigned nor did she seek or obtain approval from the R3

chairperson for additional testing. Respondent did not submit

completed psychological evaluation reports to the R3 office

within two week s of completing all of the evaluations.

Respondent’s case log report reflects that 10 cases were

completed but only eight evaluation reports were submitted.

None of the evaluation reports on Respondent’s monthly case log

report were submitted for review as required. Psychoeducational

evaluation reports were not timely submitted to Ms. Pacheco for

review. Numerous errors were reflected on the psychoeducational

evaluation reports that were submitted. Ms. Pacheco returned

the reports to Respondent with in structions to correct the

reports. Respondent did not return corrected reports to

Ms. Pacheco.

34. Respondent declined to participate in the Employee

Assistance Program, which was offered in D irective 6. 9

35. In addition to re - issuing the directives that had been

given at the January CFR, Mr. Jackson issued directives

requiring Respondent to report to work on time, to report her

presence at the school site to a designated contact person, and

to complete a Professional Improvement Plan (PIP) that was based

on specified indicators pursuant to Petitioner’s Professional

Assessment and Comprehensive Evaluation System (PACES). 1 In

addition, Mr. Jackson changed Respondent’s schedule to reduce

the number of schools she would have to travel to in order to

con duct the number of evaluations Mr. Jackson had directed her

to evaluate each month. This change was made in an effort to

assist Respondent meet her productivity directives.

MAY 2004 CFR

36. Mr. Jackson conducted a CFR with Respondent on May 7,

2004. P etitioner established that Respondent continued to fail

to meet the directives that Mr. Jackson had imposed as to

productivity. Respondent’s evaluation reports and monthly case

reports continued to contain procedural and substantive errors.

Respondent fa iled to submit copies of her evaluation reports to

Mr. Jackson’s office as directed.

37. Mr. Jackson issued revised directives to Respondent.

Those revised directives, which were similar to the previously

issued directives, are set forth in Petitioner’ s Exhibit 143 and

are incorporated herein by reference. Again, Respondent was

directed to complete a PIP on specified indicators on the PACES

evaluation system. The PIP Respondent was required to complete

was admitted into evidence as Petitioner’s Exhibi t 144.

ANNUAL EVALUATION FOR 2003 - 04 SCHOOL YEAR

38. On May 7, 2004, Mr. Jackson completed his annual

evaluation of Respondent’s job performance for the 2003 - 04

school year. 11 Part A of the evaluation form contains six

domains. Mr. Jackson rated Respond ent as meeting standards for

each of the six domains in Part A. Those domains are

“Preparation and Planning”, “Management”, “Human Relationship”,

“Professional Practice”, and “Contribution to School

Improvement”. Part B contains the seventh domain of

“Pr ofessional Responsibilities”. For that seventh domain,

Mr. Jackson rated Respondent as not meeting standards.

Mr. Jackson’s overall rating of Respondent was that she did not

meet standards. On the PACES evaluation form, the evaluator can

make one of the following three recommendations: “Recommended

for Employment”, “Not Recommended for Employment”, or

“Performance Probation Carry - over.” Mr. Jackson recommended the

third option, which meant that Respondent’s performance

probation was to be carried over to the next school year.

39. Respondent’s May, June, July, and August, 2004, case

reports established that she continued to fail to meet

productivity directives. She typically did not timely submit

reports for typing and she did not complete the assign ed number

of evaluations. She developed a backlog for her assigned cases.

SEPTEMBER 2004 CFR

40. On September 16, 2004, Mr. Jackson had a CFR with

Respondent because she had not complied with the directives that

had been given to her. Dr. Buslinger - Cl ifford attended that

meeting. Eleven revised directives, similar to the previously -

issued directives, were given to her. Those revised directives

are set forth in Petitioner’s Exhibit 165 and are incorporated

by reference. Included in the directives was another PIP

(Petitioner’s Exhibit 167).

41. Mr. Jackson ordered Respondent to return 17 cases that

had been assigned to her to Dr. Buslinger - Clifford for

reassignment. On September 24, 2004, Respondent complied with

that order and those cases were reass igned. Also as directed,

Respondent reviewed with Dr. Buslinger - Clifford Respondent’s

backlog of 26 other cases. Dr. Buslinger - Clifford observed that

Respondent’s case files were disorganized, some contained mold,

and some contained pieces of dead roache s.

42. Respondent submitted 26 reports for typing in mid

October 2004. Her October 2004 case report fails to reflect

that those cases were submitted for typing.

NOVEMBER 2004 CFR

43. On November 16, 2004, Mr. Jackson had a CFR with

Respondent because she had not complied with the directives that

had been given to her. She had not completed her PIP; the

psychological evaluation reports she submitted contained

typographical, grammatical, and procedural errors; and she did

not submit contact information she had been instructed to

submit. Eleven revised directives, similar to the previously -

issued directives, were given to her. Those revised directives

are set forth in Petitioner’s Exhibit 188 and are incorporated

by reference.

44. On November 16, 20 04, Mr. Jackson reprimanded

Respondent in writing. That reprimand is set forth in

Petitioner’s Exhibit 189, which is incorporated herein by

reference.

45. On November 17, 2004, Respondent provided Mr. Jackson

with a report listing the cases that had be en assigned to her.

That list was not accurate because Respondent failed to list

five cases that had been assigned to her. Respondent continued

to fail to evaluate cases that had been assigned to her on a

timely basis.

46. Respondent’s case status rep orts for January and

February 2005, did not follow district polices. From those

reports, Mr. Jackson could not determine the status of cases

that had been assigned to Respondent.

FEBRUARY 2005 CFR

47. For the school year 2004 - 05, Robert Kalinsky was t he

personnel director for R3 and DanySu Pritchett was the

Administrative Director of Petitioner’s Office of Professional

Standards (OPS). On February 15, 2005, Ms. Pritchett conducted

a CFR with Respondent at the OPS offices. Respondent,

Mr. Kalinsky, Mr . Jackson, Dr. Bulsinger - Clifford, and two union

representatives also attended the CFR. Petitioner’s Exhibit

206, a summary of that CFR, is hereby incorporated by reference.

The summary of that CFR reflects the following statement by

Ms. Pritchett:

The record reflects that you have been

repeatedly insubordinate and grossly

insubordinate to directives issued to you by

Mr. Jackson. Additionally, the record

reflects your failure to complete and submit

psychological evaluation reports [for]

review by the r equired timelines and your

failure to submit monthly reports/logs.

. . .

48. Mr. Kalinsy received numerous complaints from school -

based personnel about Respondent’s performance. Mr. Kalinsky

had difficulty locating Respondent on one occasion beca use

Respondent was not at her scheduled location and had not

informed her contact person at the school where she was going.

He had difficulty locating her on another occasion because she

did not timely report to work at the school site she was

scheduled t o serve. On March 2, 2005, Mr. Kalinsky wrote

Respondent a memorandum advising her that she was in violation

of directives that had been issued to her at prior CFRs. That

memorandum, Petitioner’s Exhibit 214, is hereby incorporated by

reference.

49. O n March 5, 2005, Mr. Kalinsky revised Respondent’s

schedule so that Tuesdays, Wednesdays, and Thursdays of each

week were reserved for completion of prior assignments.

Mr. Kalinsky directed Respondent to submit five completed cases

to R3 each Friday. Mr. Kalinsky had the authority to issue that

directive to Respondent. The directive was reasonable. On

Friday, March 18, 2005, Respondent failed to comply with that

directive. Respondent also failed to comply with Mr. Kalinsky’s

directive on Friday, March 25, 2005. Mr. Kalinsky issued

another memorandum to Respondent on March 31, 2005, for failing

to comply with his directive. That memorandum, Petitioner’s

Exhibit 222, is incorporated by reference.

50. On May 27, 2005, in the PACES annual evaluation fo r

the School Year 2004 - 05, Mr. Kalinsky rated Respondent as not

meeting standards. Respondent had consistently failed to follow

directives that had been issued to her as to timelines and

productivity, had failed to adhere to Petitioner’s policies and

proc edures, and had turned in reports that contained

inaccuracies, errors, and misleading information. Mr. Kalinsky

did not recommend Respondent for further employment because he

reasonably concluded that Respondent had not been fulfilling her

professional re sponsibilities.

51. Respondent’s supervisors recommended the termination

of her employment as a school psychologist. Petitioner followed

all applicable procedures in processing that recommendation,

which resulted in the School Board action at its regul ar meeting

on May 18, 2005, that underpins this proceeding.

52. Dating from Ms. Boden tenure as Respondent’s

supervisor in the 1990s, Petitioner made reasonable efforts to

try to help Respondent improve her performance. Respondent

consistently rejected those efforts.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

54. Because this case is a proc eeding to terminate

Respondent’s employment with the School Board and does not

involve the loss of a license or certification, Petitioner has

the burden of proving the allegations in the Notice of Specific

Charges by a preponderance of the evidence, as opp osed to the

more stringent standard of clear and convincing evidence.

McNeill v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d

DCA 1996); Allen v. School Board of Dade County , 571 So. 2d 568,

569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake C ounty ,

569 So. 2d 883 (Fla. 3d DCA 1990).

55. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain p roposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

56 . Section 1012.33(4), Florida Statute s, provides grounds

for the suspension or dismissal of a continuing contract

employee who meets the definition of “instructional personnel”,

such as Respondent. 12 Included among the grounds are

“incompetency , ” “gross insubordination , ” and “willful neglect of

duty . ” That provision further provides, in part, as follows:

(c) . . . Whenever such charges are made

against any such employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are no t sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence sub mitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

members hip of the district school board and

such employee is discharged, his or her

contract of employment shall be thereby

canceled. Any such decision adverse to the

employee may be appealed by the employee

pursuant to s. 120.68 provided such appeal

is filed wi thin 30 days after the decision

of the district school board.

57. Florida Administrative Code Rule 6B - 4.009(1) defines

the term “incompetency, and provides in pertinent part:

(1) Incompetency is defined as inability

or lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from t he

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure

to perform duties prescribed by law

(Section 231.09, Florida Statutes) [now

codified as Sec tion 1012.53, Florida

Statutes]. . . .

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate c ommand

of his or her area of specialization.

58. Florida Administrative Code Rule 6B - 4.009(4), defines

“gross insubordination or willful neglect of duty” as being

. . . a constant or continuing refusal to

obey a direct order, reasonable in nature,

give n by and with proper authority.

59. Petitioner established by a preponderance of the

evidence that Respondent was guilty of incompetence, as that

term is defined by Florida Administrative Code Rule 6B -

4.009(1)(a) by proving her inefficiency as that term is defined

in the Rule. In light of Respondent’s long - term employment with

Petitioner, it is concluded that Petitioner failed to prove that

Respondent lacked the capacity to perform her duties within the

meaning of Florida Administrative Code Rule 6B - 4.0 09(1)(b).

60. Petitioner also established by a preponderance of the

evidence that Respondent was guilty of “gross insubordination or

willful neglect of duty” as that phrase is defined by Rule 6B -

4.009(4), by repeatedly failing to meet reasonable deadlin es for

complying with directives imposed upon her by her supervisors.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that Petitioner enter a Final

Order adopting the findings of fact and conclus ions of law set

forth herein. It is also RECOMMENDED that the Final Order

terminate Respondent’s employment.

DONE AND ENTERED this 25th day of April, 2006, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

A dministrative 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 25th day of April, 2006.

ENDNOTES

1/ Ms. Schere represented Petitioner through the portion of the

hearing conducted in October 2005. Thereafter, Ms. Schere

became unavailable and Ms. Segura assumed the representation of

P etitioner.

2/ All statutory references are to Florida Statutes (2005).

All references to rules are to the version of the rule published

in Florida Administrative Code as of the date of this

Recommended Order.

3/ In reaching this finding, the undersi gned has considered

Respondent’s testimony that attempted to justify the delays.

That testimony is found to be unpersuasive.

4/ These errors are summarized in Petitioner’s Exhibit 158.

5/ This report is part of Petitioner’s Exhibit 113.

6/ See P etitioner’s Exhibit 198.

7/ See Petitioner’s Exhibit 109.

8/ See Petitioner’s Exhibit 116.

9/ Respondent had the right to decline that assistance and the

fact that she exercised that right has not been considered by

the undersigned in reaching the c onclusions contained herein.

10/ There was a dispute between the parties as to whether the

PACES evaluation system was appropriate for Respondent since she

was not a member of the instructional staff. Petitioner

established that PACES was appropriately used to evaluate the

job performance of school psychologists, including Respondent.

11/ See Petitioner’s Exhibit 145.

12/ Pursuant to Section 1012.01(2)(b), Florida Statutes , school

psychologists are “instructional personnel . ”

COPIES FURNISHED :

M ark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Ana I. Segura, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Dr. Rudolph F. Crew, Superintend ent

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE O F RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.