10-000175TTS Lake County School Board vs. Cheryl Rayam Status: Closed Recommended Order on Friday, May 28, 2010.

Summary: Respondent failed to meet a term of her employment duty to achieve a specialty required for continued employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-0175

)

CHERYL RAYAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on March 31, 2010, in Leesburg, Florida, before J.D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

McLin & Burnsed P.A.

Post Office Box 491357

Leesburg, Florida 34749-1357

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Cheryl Rayam (Respondent) should be dismissed from

her employment with the school district.

PRELIMINARY STATEMENT

This case began on December 22, 2009, when Lake County

School Board (Petitioner or School Board) took action to

initiate termination proceedings against Respondent. Petitioner

claims that there is just cause for the termination of

employment based upon Respondent’s failure to comply with a

material term of her contract for employment. More

specifically, Petitioner alleged that Respondent failed to take

and pass the Middle Grades Integrated Curriculum subject area

examination (MGIC) as required by her agreement with the School

Board. Although Respondent had taken and achieved

accomplishments in other areas of study, Petitioner specifically

required that she pass the MGIC as part of their effort to

establish Respondent as a highly qualified teacher. Respondent

timely challenged the proposed dismissal and the matter was

forwarded to the Division of Administrative Hearings (DOAH) for

formal proceedings on January 13, 2010.

The case was scheduled for hearing for March 31, 2010,

pursuant to a Notice of Hearing entered January 25, 2010. On

March 30, 2010, a Motion to Continue Hearing was filed on

Respondent's behalf by an attorney not previously of record in

the cause. The motion was not timely filed, did not state that

counsel had conferred with opposing counsel, did not state the

opposing party's position on the request, and did not represent

other factors that would suggest an unforeseeable emergent

situation justified a continuance. The motion merely stated

that counsel had been retained on March 29, 2010, for the

hearing scheduled two days later. The Motion to Continue was

denied.

At the hearing, Petitioner presented testimony from Michele

Hoppenstedt, a human relations tracking analyst; Julie Robinson-

Lueallen, principal at Eustis Middle School (EMS); Laurie

Marshall, executive director of human resources and employee

relations; Louis (Rusty) Dosh, also a principal at EMS; and

Sharon Gosnell, senior human relations specialist for

Petitioner. Petitioner’s Exhibits 1-3, 5-8, and 12-13 were

admitted into evidence. Petitioner also submitted designated

pages of the transcript of Respondent's deposition into

evidence. The pertinent pages are identified on page 38 of the

hearing transcript.

Neither Respondent nor her counsel appeared at the hearing.

No evidence was presented on Respondent's behalf. The

Transcript of the proceeding was filed on April 26, 2010. The

parties were granted twenty days from the filing of the

transcript to file a proposed recommended order, and Petitioner

did so. Respondent filed a Response to Recommended Order on

May 26, 2010. Although untimely (as to the latter filing), both

parties' documents have been fully considered in the preparation

of this Recommended Order. References to factual allegations

outside the record have not been used for a finding of fact.

FINDINGS OF FACT

1. Petitioner is a duly constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Lake County Public

School District. As such, it has the authority to regulate all

personnel matters for the school district. See §1001.32, Fla.

Stat. (2009).

2. At all times material to the allegations of this case,

Respondent was an employee of the School Board assigned to

middle schools within the district. As such, it was expected

that Respondent would faithfully perform the duties assigned to

her and would comply with all terms of her agreement with the

School Board. Respondent's assignment at EMS as an exceptional

education teacher led to the instant case.

3. At all times material to this matter, Respondent’s

employment relationship with Petitioner was subject to a

Professional Service Contract of Employment for Instructional

Personnel of the Public Schools. Additionally, on April 20,

2007, Respondent signed a compliance plan so that she would

become eligible for the designation of "highly qualified"

instructor. Respondent elected to seek the two-year option

within which to obtain the designation as she intended to obtain

the reading endorsement. The document executed by Respondent

(Petitioner's Exhibit 2) noted that Respondent would have to

successfully pass the MGIC together with achieving the reading

endorsement designation.

4. The compliance plan also specified that failure "to

complete the components of this compliance plan by the specific

timeline may result in the termination of employment."

Respondent was to obtain the reading endorsement and pass the

MGIC no later than June 30, 2009.

5. In short, Respondent failed to pass the MGIC. Although

she achieved the reading endorsement and has successfully

completed the requirements for ESOL endorsement, Respondent did

not successfully complete the MGIC examination.

6. The "highly qualified" designation requirement came as

a result of the No Child Left Behind provisions of law. As an

exceptional student educator in a self-contained classroom,

Respondent was identified as one of the teachers who were

required to pass the MGIC examination. Other teachers in the

school district were also within the category of those who were

required to achieve highly qualified status.

7. On January 7, 2008, and March 18, 2009, Respondent was

reminded by Petitioner of her continuing obligation to achieve

highly qualified status. Respondent did not successfully pass

the MGIC by June 30, 2009. Thereafter, she was granted an

extension in order to afford her more time to pass the exam.

8. By memorandum dated May 7, 2009, Respondent was given

until the end of the first term of the 2009/2010 school year to

pass the exam. When the winter break came in December 2009,

Respondent had still not passed the MGIC.

9. Although Respondent claimed that medical problems

interfered with her ability to take the exam, she never sought a

medical accommodation from Petitioner.

10. Although Respondent achieved the reading endorsement,

Petitioner was not obligated to place her in a reading

endorsement position. All job positions held with Petitioner

required Respondent to achieve highly qualified status.

11. Petitioner treated all teachers who were required to

achieve highly qualified status similarly. Respondent did not

get singled out for any reason. Other teachers who signed

compliance plans were also required to pass examinations to

remain employed with the district.

12. Respondent was duly notified of the Petitioner's

intention to terminate her employment by letter dated

December 22, 2009. Thereafter, Respondent timely challenged

Petitioner's decision.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties to, and the

Fla. Stat. (2009).

14. Petitioner bears the burden of proof in this cause to

establish by a preponderance of the evidence that Respondent

committed the violations alleged. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

15. Section 1012.33, Florida Statutes (2009), provides, in

pertinent part:

All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal

during the term of the contract only for

just cause. Just cause includes, but is not

limited to, the following instances, as

defined by rule of the State Board of

Education: misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or conviction of a crime

involving moral turpitude.

16. In this case Petitioner maintains that it has just

cause for termination due to Respondent's failure to pass the

MGIC. Clearly, Respondent did not willfully fail the exam.

Nevertheless, Respondent was contractually obligated to achieve

highly qualified status by the end of the first term of the

2009/2010 school year. Respondent knew from 2007 (at the

latest) that achievement of highly qualified status was required

for her employment with the school district. Petitioner has

established it gave Respondent sufficient notice that it

expected her to pass the exam. It was Respondent's employment

duty to achieve highly qualified status.

17. Secondly, repeated failure to perform duties described

by law constitutes inefficiency. In this cause Petitioner

notified Respondent that pursuant to No Child Left Behind, she

was required to achieve the highly qualified status. Further,

by executing the compliance plan Respondent knew or should have

known that achieving highly qualified status was her duty to the

school district. She simply failed to meet that duty.

18. Florida Administrative Code Rule 6B-4.009 provides in

pertinent part:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

(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 the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency:

(1) repeated failure to perform duties

prescribed by law (Section 231.09, Florida

Statutes);

(2) repeated failure on the part of a

teacher to communicate with and relate to

children in the classroom, to such an extent

that pupils are deprived of minimum

educational experience; or

(3) repeated failure on the part of an

administrator or supervisor to communicate

with and relate to teachers under his or her

supervision to such an extent that the

educational program for which he or she is

responsible is seriously impaired.

(b) Incapacity:

(1) lack of emotional stability;

(2) lack of adequate physical ability;

(3) lack of general educational background;

or

(4) lack of adequate command of his or her

area of specialization.

19. For clarity, Section 231.09, Florida Statutes,

referred in the foregoing rule, is now Section 1012.33, Florida

Statutes (2009). Thus the definitions utilized are still

appropriate in this matter.

20. In order for Respondent to remain an exceptional

student educator as employed by Petitioner, her area of

specialization demanded compliance with the highly qualified

status. By failing to achieve that status Respondent failed to

demonstrate an adequate command of her teaching specialty. This

failure demonstrates a lack of capacity to perform the

educational duties required by the employer.

21. It is concluded that Petitioner has demonstrated by a

prepo21erance of the evidence that Respondent's employment with

the school district may be terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lake County School Board enter a

final order terminating Respondent's employment for the position

requiring highly qualified status but allowing Respondent leave

in the future to reapply for employment with the district for

any position that may fall open for which she is qualified and

certified to teach.

DONE AND ORDERED this 28th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of May, 2010.

COPIES FURNISHED :

Dr. Susan Moxley, Superintendent

Lake County Public Schools

201 West Burleigh Boulevard

Tavares, Florida 32778-2486

Stephen W. Johnson, Esquire

McLin & Burnsed

Post Office Box 491357

Leesburg, Florida 34749-1357

Cheryl Rayam

1705 Idaho Avenue

Orlando, Florida 32809

Andre T. Young, Esquire

11 North Summerlin Avenue, Suite 210

Orlando, Florida 32801

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.