10-010168TTS Broward County School Board vs. Donna Lichi Status: Closed Recommended Order on Wednesday, July 20, 2011.

Summary: Teacher's employment should be terminated because the teacher was not fit for duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10168

)

DONNA LICHI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on May 3 and 4, 2011 , by webcast teleconference

between Tallahassee and Fort Lauderdale, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearin gs (DOAH).

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Panza, Maurer and Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

For Respondent: Jeffrey Scott Sirmons, Esquire

Johnson and Sirmons, LLP

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent ' s

employment based on determination s by two licensed psychologist s

that Respondent was not fit to perform h er duties as a classroom

teacher.

PRELIMINARY STATEMENT

Donna Lichi ( Respondent ) is a classroom teacher employed by

the School Board of Broward County, Florida (School Board)

pur suant to a professional service contract. For the 2009 - 10

school year, Respondent was assigned to Everglades Elementary

School (Everglades) as a second grade te acher.

For reasons that will be discussed below, the principal of

Everglades submitted to the School Board's Professional

Standards and Special Investigative Unit (SIU), a request that

Respondent be subjected to a " fit for duty " evaluation pursuant

to the School Board ' s Policy 4004 and attached certain

information to substantiate the request. On October 16, 2009,

the Acting Executive Director of SIU advised Respondent in

writing that she would be required to submit to a fit for duty

evaluation, a process that will be discussed below. At the

conclusion of that process two licensed psychologists determined

that Respondent was not fit for duty.

Based on that determination, the School Board accepted the

Superintendent of School ' s re commendation that Respondent ' s

employment be suspended and thereafter terminated, subject to

her due process rights. Respondent timely requested a formal

hearing to challenge the proposed actions, the matter was

referred to DOAH, and this proceeding fo llowed.

At the final hearing, Petitioner presented the testimony of

the father of one of Respondent ' s students, Martha Machado

(grade chair for second grade at Everglades), Eliot Tillinger

(principal of Everglades) , Melissa Renedo (teacher at

Everglades), Richard Mijon (Personnel Administrator V with SIU),

Maria Antonia Uribe (a paraprofessional at Everglades), Jennifer

Kanefsky (a teacher at Everglades), Dr. Rick Harris

(psychologist) , and Dr. Grace Sidberry (psychologist). School

Board ' s pre - marked E xhib its 1 - 10, 13, 14, 17, 18, 20 - 22, and 24 -

26 were admitted into evidence. The remaining pre - marked

exhibits were not offered into evidence. The following School

Board exhibits contain sensitive information as to Respondent ' s

health and have, on joint motio n, been sealed: 4, 6, 9, 13, 20,

21 , and 26 .

Respondent testified on her own behalf, but offered no

other testimony. Respondent offered one exhibit, which was

admitted into evidence under seal due to the sensitive health

information contained therein. Respondent offered no other

exhibits.

A Transcript of the proceedings, consisting of three

volumes, was filed on J une 6, 2011. In addition, the

testimon ies of Drs. Harris and Sidberry were filed under seal on

July 6, 2011. On joint motion, the deadline f or the filing of

proposed recommended orders (PROs) was set for 30 days following

the filin g of the transcript. Both parties timely filed a

P roposed Recommended Order , and each has been duly - considered by

the undersigned in the preparation of this Recomme nded Order.

The undersigned has made findings of fact as to

Respondent ' s fitness for duty in general terms to protect her

privacy.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, a nd

supervise the public schools in Broward County, Florida.

2. A superintendent of schools has the statutory

responsibility and obligation to recommend the placement of

school personnel and to require compliance and observance by all

personnel of all laws , policies, and directives of the school

board, the State of Florida, and the federal government. In

this proceeding, the Superintendent of Schools for the Broward

County School District has recommended to the School Board that

Respondent ' s employment be terminated because she is not fit to

perform her duties as a classroom teacher .

3 . Respondent is a classroom teacher with approximately

ten years of teaching experience. For the 2008 - 09 school year,

Respondent taught at Seminole Middle School. Respondent

received a satisfactory evaluation for that school year.

4 . Respondent was assigned to teach a second grade class

at Everglades for the 2009 - 10 school year pursuant to a

professional service contract.

5 . The School Board has adopted Policy 40 04, which

provides for mandatory physical and/or psychological

examinations for employees , as follows:

AT ANY TIME DURING THE COURSE OF EMPLOYMENT

WHEN IT SHALL BE DEEMED ADVISABLE BY THE

SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE

REQUIRED TO TAKE A PHYSI CAL OR PSYCHOLOGICAL

EXAMINATION.

RULES

1. The Board authorizes the

Superintendent to establish procedures to

carry out the intent of this policy.

2. The affected employee shall select the

name of a medical doctor, psychologist or

psychiatrist fr om a list maintained by the

Division of Personnel, Policies, Government

and Community Relations.

3. Where the employee is found to be

unable to function satisfactorily, the

Division of Personnel, Policies, Government

and Community Relations shall take

appropriate action.

6. On October 14, 2009, Eliot Tillinger, principal of

Everglades, sent the following memo to Craig Kowalski, who was

serving as the Acting Executive Director of SIU:

As per the above the above referenced policy

[Policy 4004], a " fit f or duty " evaluation

is being requested for Donna Lichi.

Attached please find her job description as

well as supporting documentation. Multiple

concerns regarding the safety and welfare of

the students have arisen from staff and

parents in the school comm unity.

7. As reflected in the memo, Mr. Tillinger attached

documentation supporting his request. This documentation was

prepared by Mr. Tillinger ( or by his staff at his direction ),

and documented his personal observations plus complaints he had

receive d from parents and school staff. Mr. Tillinger did not

formally observe Respondent , nor did he conduct a formal

evaluation of her performance. His observations were from his

customary " walk - through s , " which entailed unscheduled visits to

classrooms and o bservations of approximately five minutes a

visit.

8. Of particular concern to Mr. Tillinger were reports

that on at least two occasions, Respondent left children who

were supposed to be under her supervision without supervision.

One child was observed urinating on a bush while on the

playground. Instead of supervising her class, Respondent talked

on her cell phone.

9. On another occasion, Respondent permitted two children

to walk unsupervised through an area that parents were driving

through to pick up their children after school. The children

were returning from a park adjacent to the school. The children

had gone to the park to retrieve an object one of them had left

during recess. Respondent exposed those two children to danger

by allowing them to go to the park unsupervised. No formal

disciplinary action was taken against Respondent following

either incident.

1 0 . Mr. Tillinger recei ved a report from parents of

children in Respondent ' s class that Respondent ' s interaction

with them was unusual. One parent told Mr. Tillinger that

Respondent was self - absorbed at the " meet your teacher "

conducted just before school started and at the " op en house "

conducted shortly after school started. On these occasions,

Respondent bragged about what good a teacher she was and boasted

of her personal achievements and accolades. That parent opined

to Mr. Tillinger (and testified at the formal hearing) that he

did not think Respondent was aware of what was happening in her

classroom because at a parent - teacher conference she did not

know that his daughter could not log onto the classroom computer

for several days. That parent also complained t o Mr. Tilli nger

that Respondent required her students to wear shirts of a

certain color on different days of th e week, a practice that was

not sanctioned by the school administration. The parent also

reported that Respondent refused to complete a questionnaire

a psychologist had asked Respondent (as the child ' s teacher) to

complete as part of an evaluation of t he student.

1 1 . Another parent reported to Mr. Tillinger that

Respondent ' s behavior during a parent - teacher conference was

bizarre. This parent reported that Respondent had " almost a

catatonic stare " during the conference. The parent also

reported that in a subsequent telephone conference, Respondent

abruptly hung up on the parent during the middle of the

conversation.

1 2 . Mr. Tillinger characterized the number of complaints

and the nature of the complaints as being " unusual. "

1 3 . Martha Machado was th e grade chair for the second

grade at Everglades. Ms. Machado met with the other second

grade teachers on a weekly basis to discuss any concerns or

issues. Although she attended these meetings, Respondent was

never engaged in these meetings by asking que stions or

contributing comments.

1 4 . Ms. Machado met with Respondent prior to the beginning

of school to help her settle into her classroom. During that

first meeting, Respondent removed from her classroom all chairs

that were not colored blue and replaced them with blue chairs

taken from other second grade classrooms. Respondent thereafter

decorated the walls of her room completely in blue. Ms. Machado

considered this behavior to be unusual.

1 5 . Ms. Machado gave Respondent detailed lesson plans at

the beginning of school and provided Respondent with copies of

lesson plans Ms. Machado used for her own class. Ms. Machado

offered to assist Respondent and was available to answer a ny

questions. Until October, Respondent did not ask any questions

as to the lesson plans. The lesson plans were provided to

assist Respondent . Ms. Machado told Respondent to use them,

modify them, or do whatever else she wanted with them. In

October, R espondent admitted to Ms. Machado that she did not

understand her lesson plans. Respondent also stated that she

had not received copies of the lesson plans. 1 Respondent had no

explanation for why she did not tell Ms. Machado sooner that she

did not under stand the lesson plans.

1 6 . When a student was transferred from one classroom to

another classroom, the student was to take his or her books and

workbook to the new classroom. After a student was transferred

from Respondent ' s classroom to another second grade classroom,

the new teacher sent the student to Respondent ' s classroom to

get the student ' s books and workbook. After the student

retrieved the books and the workbook, the student returned to

the new classroom. Soon thereafter, Respondent entered th e new

classroom, took the workbook from the student, and returned to

her classroom. When informed of the incident, Ms. Machado told

Respondent to return the workbook to the student.

1 7 . Ms. Machado observed that Respondent was overly

complimentary to her, copied her hairstyle, and purchased a

purse identical to Ms. Machado ' s purse. Ms. Machado found this

behavior to be strange.

1 8 . Ms. Machado discussed her concerns about Respondent

with Mr. Tillinger. Mr. Tillinger also received reports that on

more than one occasion, Respondent dismissed her class 15

minutes prior to the end of the school day and had her class

wait in the stairwell, singing songs and playing games until the

final bell rang.

19 . In response to his obser vations, the reports he heard

as to Respondent ' s behavior, and his concerns as to student

safety, Mr. Tillinger assigned Melissa Renedo, an intern

teacher, to Respondent ' s classroom. Ms. Renedo was instructed

to assist Respondent , and to let Ms. Machado k now if anything in

Respondent ' s class made her uncomfortable with respect to the

students ' safety, welfare, or academics.

2 0 . Respondent ' s classroom was disorganized. She had no

reading groups, she had no lesson plans (other than those given

to her by Ms . Machado), and she would interrupt lessons to

permit students to go to the " treasure box " to get a trinket as

a reward for wearing a certain colored shirt.

2 1 . Ms. Renedo witnessed Respondent pick up a student in

the middle of a lesson, comment on how he smelled, and asked him

about his cologne. During a reading lesson, Respondent called

the parent of the student with the cologne to see if she could

go to the parent ' s house for dinner.

2 2 . Ms. Renedo observed that Respondent frequently stopped

during a lesson to wipe down door handles, computers, and desks

with Lysol.

2 3 . One morning two students who said they were fifth

grade students came to Respondent ' s classroom at her request to

assist her with setting up a bulletin boa rd. When it was time

for lunch, Respondent took her class to lunch, leaving the two

fifth grade students unsupervised in the classroom. When

Ms. Renedo questioned Respondent about leaving the students

unsupervised, Respondent replied that it would be oka y and that

they were there to help out.

2 4 . Ms. Renedo ' s observations and concerns were conveyed

to both Ms. Machado and Mr. Tillinger.

2 5 . Mr. Tillinger had sufficient justification for

requesting the fit for duty evaluation on Respondent dated

October 14, 2009. 2 The documentation submitted with the request

was sufficient justification for SIU to deem it " advisable " to

require Respondent to submit to a psychological evaluation.

2 6 . At all times relevant to this proceeding, the

Superintendent of Schools had in effect the following Policy

4004 procedures relating to fitness for duty determinations:

Fit for Duty Determination Procedures

1. The Executive Director of Professional

Standards & Special Investigative Unit (SIU)

receives request from a

Princi pal/Administrator (includes District

Administrators) or Superintendent/Designee .

2. SIU notifies employee via certified

mail that he/she must undergo a phys ical

and/or psychological examination. A

reassignment letter is prepared directing

employee to remain at home or at an

alternate site with pay, depending on

circumstances (i.e. active case

file/investigation).

3. The affected employee shall select the

name of a medical doctor psychologist or

psychiatrist from a list maintained by the

Executive D irector of Professional Standards

& Special Investigative Unit, within 24

hours.

4. SIU Administrator schedules within ten

working days a medical appointment and

follows - up in writing to the doctor ' s office

and to the employee of appointment

confirmati on.

5. Letter is sent to the doctor

explaining billing instructions, and ' Fit

for Duty Evaluation ' report of findings.

6. The doctor as delineated in the policy

will conduct P re [sic] evaluation at

District expense. Note: a 2nd Opinion will

be at the employee ' s expense if requested,

with the employee selecting from the School

Board approved list as delineated in the

policy.

7. A third evaluation will be mandated if

previous two (Pre & 2 nd Opinion) are

contradicting and will be at District

expense and will be binding by [sic] all

parties.

8. Doctor determines if employee is ' Fit

for Duty ' or [is] not [fit] for duty.

9. Where the employee is found ' unfit for

duty ' the Executive Director of Professional

Standards & Special Investigative Unit shall

take appropriate action per the

recommendation of the doctor, subjecting

employee to a Post - evaluation by the same

doctor making the initial evaluation. The

Post - evaluation ought to occur within 90

days of the initial eval uation.

10. If a doctor determines that the

employee is ' Unfit for Duty ' , an

administrative reassignment letter is

prepared changing the employee ' s pay status

to ' at home without pay (PLV) ' . The

employee is given information to call the

Leave Departme nt to apply for any paid leave

accrued, and/or any other leave types per

SBBC Policies that they are eligible for.

Also, a Formal Referral to EAP is prepared

for follow - up.

11. Based on the progress and/or

compliance with EAP ' s recommendations, a

Post Evaluation is scheduled within the 90 -

day reassessment period.

12. If employee is unfit to return to

work in the Post Evaluation, then the

employee is recommended for termination

(School Board Agenda is prepared for the

next Board Meeting). Note: 2nd Opinions on

the Post evaluation will be at the

employee ' s expense, if requested. Third

evaluation, if required will be at District

expense and will be binding by [sic] all

parties.

13. Employee and school/work site are

notified of doctor ' s fit fo r duty status via

certified mail. (Note: Confidential

Doctor ' s report will only be distributed to

the employee). The immediate supervisor is

notified as well. However if the doctor has

follow - up recommendations, then a Formal

Referral to Employee Assist ant Program (EAP)

is prepared by SIU (i.e. mental health

follow - up or other referrals as appropriate.

14. If employee is found Fit for Duty, a

certified letter is sent to the employee

with instructions to return to work. The

immediate supervisor is no tified as well.

2 7 . Richard Mijon delivered a letter to Respondent on

October 16, 2009, informing her that she would be required to

submit to a fit - for - duty evaluation.

2 8 . Respondent chose Dr. Rick Harris to conduct the

initial evaluation. Dr. Harris found Respondent not to be fit

for duty. Because of that finding, Dr. Harris also performed a

re - evaluation.

29 . Prior to the eval uations, Mr. Mijon provided

Dr. Harris with the docume ntation attached to Mr. Tillinger ' s

request and the results of other investigations by SIU of

Respondent 's behavior that occurred before she was transferred

to Everglades.

3 0 . As part of the initial evaluation, Dr. Harris examined

Respondent on November 2 and December 15, 2009, and on

January 6, 2010. His report, dated January 22, 2010, is part of

School Board ' s E xhibit 4. After discussing the results of the

tests he administered and his clinical interview, Dr. Harris '

report summarized his findings and explained his reasons for

those findings. His testimony at the formal hearing was

consistent with his report. Dr. Harris found that Respondent

was not fit for duty.

3 1 . On June 7, 2010, Dr. Harris conducted his re -

evaluation of Respondent . His r eport, dated August 12, 2010, is

also part of School Board ' s E xhibit 4. After discussing the

results of the tests he administered during the re - evaluation,

and his clinical interview, Dr. Harris ' report summarized his

findings and explained his reasons fo r those findings. His

testimony at the formal hearing was consistent with his report.

Dr. Harris found that Respondent continued to be unfit for duty.

3 2 . The undersigned finds Dr. Harris ' testimony to be

clear, professional, and persuasive. Petitioner proved that

Respondent was not fit for duty on the initial evaluation and

re - evaluation by Dr. Harris.

3 3 . Pursuant to the School Board ' s Policy 4004 , Respondent

was entitled to seek a second opinion by being evaluated by a

separate School Board approved psychologist of h er choosing , but

at Respondent ' s expense . Respondent chose Dr. Grace Sidberry, a

licensed psychologist.

3 4 . Dr. Sidberry evaluated Respondent on September 8 and

14, 2010. Her report dated September 14, 2010, is contained in

School Boar d ' s E xhibit 9. After discussing the results of the

tests she administered during the re - evaluation, and her

clinical interview, Dr. Sidberry ' s report summarized her

findings and explained her reasons for those findings. Her

testimony at the formal hearin g was consistent with her report.

Dr. Sidberry found that Respondent was unfit for duty.

3 5 . The undersigned finds Dr. Sidberry ' s testimony to be

clear, professional, and persuasive. Petitioner established by

a preponderance of the evidence that Respond ent was not fit for

duty as a classroom teacher as of September 14, 2010.

3 6 . Drs. Harris and Sidberry opined that Respondent ' s

fitness for duty may be restored following appropriate treatment

for the conditions that render her unfit for duty . Respondent

would not benefit from a performance development plan before her

fitness for duty is restored.

37. The School Board followed its applicable rules in

processing the "fit for duty" request submitted by

Mr. Tillinger.

CONCLUSIONS OF LAW

3 8 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2010) .

39. Because Petitioner seeks to terminate Respondent ' s

employment and this case does not involve the loss of a license

or certification, Petitioner has the burden of proving the

allegations in its Administrative Complaint by a preponderance

of the evidence, as opposed to the more stringent standard of

clear and convincing evidence. S ee McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd.

of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

40 . 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 proposition. 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)).

4 1 . Policy 4004 and the applicable procedures specifically

state, " I f employee is unfit to return to work in the Post

Evaluation, then the employee is recommended for termination . "

Petitioner followed the procedures required by Policy 4004, and

the evidence established that Respondent was not fit for duty

following the re - evaluation by Dr. Harris or the evaluation by

Dr. Sidberry.

4 2 . Pursuant to section 1012.33(6)(a), Florida Statutes

(2010) , a teacher on a professional service contract may be

suspended during the term of the contract for " just cause " as

defined by section 1012.33(1) (a), which provides that just cause

includes incompetency. Petitioner proved by the requisite

evidentiary standard that Respondent is incapable of performing

her duties as a classroom teacher due to her mental and

emotional status.

RECOMMENDATION

Based o n the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board of Broward County,

Florida, enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. It is

further RECOMM ENDED that the final order terminate Respondent ' s

employment.

DONE AND ENTERED this 20 th day of July, 2011, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 20 th day of July, 2011.

ENDNOTES

1 / After Respondent was removed from the classroom, the lesson

plans Respondent claimed not to have received were found in file

folders in her classroom storage area.

2 / In making that finding, the undersigned considered

Respondent ' s argument that Policy 4004 is constitutionally

infirm because there are no guidelines as to the circumstances

under which a principal can request a " fit for duty " evaluation.

An ALJ does not have the authority to determine constitutional

challenges to adopted policies of a school board. See Dep ' t of

Bus. & Prof'l Reg . , Div. of Alcoholic Beverages and Tobacco v.

Ruff , 592 So. 2d 668 (Fla. 1991). The undersigned has also

cons idered the argument that Policy 4004 can be used to get rid

of a teacher without providing the teacher assistance in the

form of a performance development plan. While there may be

times that Policy 4004 may be abused, the policy has not been

abused in thi s case. The principal in this case had adequate

reason to request the evaluation. The decision to require the

evaluation was made by SIU, not the principal. SIU had

sufficient reason to require the evaluation.

COPIES FURNISHED :

Donnie Carter , Interim Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 323 99 - 0400

Gerald Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Mark A. Emanuele, Esquire

Panza, Maurer and Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

Jeffrey Scott Sirmons, Esquire

Johnson and Sirmons, LLP

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions 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.