13-001042 Pinellas County School Board vs. Rose M. Dacanay Status: Closed Recommended Order on Wednesday, November 27, 2013.

Summary: Evidence established that teacher's assistant should be discharged for incompetence and repeated failures to perform her duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1042

ROSE M. DACANAY ,

Respondent .

/

RECOMMENDED ORDER

Administrative Law Judge John D. C . Newton, II, of the

Division of Administrative Hearings (DOAH) heard this case in

Largo, Florida, on October 1, 2013.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County Schools

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Rose M. Dacanay , pro se

2424 8th Avenue, Southwest

Largo, Florida 33770 - 2944

STATEMENT OF THE ISSUE

Should Petitioner, Pinellas County School Board ( School

Board or Board), terminate the employment of Respondent, Rose M.

Dacanay, for the reasons that follow:

A. Violation of Board Policy 4140A(9), incompetence?

B. Violation of Board Policy 4140A(9)(a), failure to

perform the duties of the position?

C. Violation of Board Policy 4140A(19) , failure to correct

performance deficiencies?

D. Violation of Board Policy 4140A(20), insubordination?

E. Violation of Board Policy 4140A(24), failure to comply

with B oard policy, state law, or contractual agreement?

PRELIMINARY STATEMENT

By letter date d February 19, 2013, the s uperintendent of

Pinellas County Schools advised Ms. Dacanay that he intended to

recommend that the Board discharge her. The letter also advised

Ms. Dacanay of her right to a hearing to dispute the decision.

On March 11, 2013, M s. Dacanay, through counsel, requested a

hearing. The Board referred the matter to DOAH to conduct the

requested hearing. The undersigned noticed the matter for

hearing to begin June 4, 2013.

On May 28, 2013, the undersigned issued an O rder allowing

Ms . Dacanay ' s counsel to withdraw. On May 28, 2013, the

undersigned entered a Case Management Order that, among other

things, continued the hearing for a number of reasons " including

recently failed settlement negotiations, the failure of the

parties to app ear for the pre - hearing conference, the failure of

the parties to file the stipulations required by the Order of

Pre - h earing Instructions, the representations of the parties,

[and] the parties ' agreement to reschedule . . . . "

Subsequently , the hearing wa s set for October 1, 2013. The

undersigned conducted the hearing as scheduled in Largo, Florida.

The School Board presented the testimony of Ms. Dacanay,

Kim Gilbert, Darlene Tickner, Jerrie Brown, Karen Trockels,

Rachel Jones, Tomeka Miller, Janelle Jenk ins, Gail Cox, Caren

Evans, Linda Vest Mark Manley, and Valencia Walker. School Board

Exhibits 1 through 13, 15, and 16 were received into evidence.

Ms. Dacanay testified and presented the testimony of Sherry Non

and Nellie Turner. Exhibits 1, 2 and 7 t hrough 10 of

Ms. Dacanay ' s were admitted into evidence. The parties were

provided an opportunity to submit proposed recommended orders. A

Tr anscript was filed. Ms. Dacanay did not submit a proposed

recommended order. The School Board timely filed and s erved a

proposed recommended order .

FINDING S OF FACT

1. The Pinellas County School District has employed

Ms. Dacanay since August 2005. She has worked as a t eacher

a ssistant and as an e xceptional s tudent e ducation (ESE)

a ssociate. At the beginning of th e 2011 - 2012 school year,

Ms. Dacanay worked as an ESE a ssociate assigned to the Paul B.

Stephens Exceptional Student Education Center (Paul B. Stephens) .

The Center serves vulnerable students with significant

developmental disabilities and medical needs.

2. ESE a ssociates work under a classroom teacher ' s direct

supervision. They must assist the teacher in all aspects of both

the care and the education of the students.

3. During the first semester of the 2011 - 2012 school year,

Ms. Dacanay worked in the classroom of Paulette Pickering.

Because Ms. Dacanay ' s performance in Ms. Pickering ' s class was

not satisfactory, the principal, Gail Cox, reassigned her to the

classroom of Linda Vest for the second semester, which started

January 2012.

4. Ms. Cox se lected Ms. Vest ' s classroom because it did not

have as many students as Ms. Pickering ' s , and the class was not

as demanding. The reassignment was to give Ms. Dacanay an

opportunity to improve her skills and continue working at the

school.

5. Also during 2011, Ms. Cox, along with other

administrators and a teacher ' s union representative , met in

October and November with Ms. Dacanay four times to review

multiple deficiencies in her performance and offer improvement

plans. In the meeting held November 10, 2 011, Ms. Cox encouraged

Ms. Dacanay to apply for other positions in the school system

that would not be so demanding and would be a better fit for her.

In January of 2012, Ms. Cox spoke to Ms. Dacanay and told her

very directly, " This is not working, Rose . You need to find a

different job. Even though everyone is nice and polite, you ' re

still not doing your job, and you need to find another one that

better fits your skills. "

6. Ms. Dacanay did not take this advice. She worked the

remainder of the 201 1 - 2012 school year at Paul B. Stephens.

After summer break , she returned to employment in the 2012 - 2013

school year. She was assigned to assist Kim Gilbert.

7. The students of Paul B. Stephens have emotional, mental,

and physical disabilities. Many hav e severe and multiple

disabilities. They are dependent upon the services of their

teachers and teacher assistants.

8. One of the students in Ms. Gilbert ' s class required the

use of Dynamic Ankle Foot Orthotics (DAFO S ). These are hard

plastic inserts pos itioned around a child ' s foot before putting

on the child ' s shoe. They must be positioned and wedged on

carefully to avoid hurting the student. After correct placement ,

they are strapped on. The DAFOS are individually made for each

wearer ' s feet. Ms. D acanay had been instructed and trained on

how to put DAFO S on.

9. DAFO S position a child ' s foot to cure or resist

deformity. They are uncomfortable even when properly applied.

When DAFO S are put on the wrong foot, they are painful and can

cause blisters and sores. They also do not properly perform

their rehabilitative function.

10. On October 23, 2012, Ms. Dacanay put a student ' s DAFO S

on backwards. This would cause the student pain and eliminate

the benefits of the DAFO S .

11. Fortunately , Ms. Gilbert spotted the mistake and

corrected it.

12. The same student also needed and wore an arm splint.

Ms. Dacanay had been instructed and trained on how to fasten the

arm splints.

13. On October 24, 2012, Ms. Dacanay was improperly

fastening the arm splint. Ms. Gilbert noticed and corrected her.

14. In 2012, Ms. Dacanay ' s duties includ ed placing

wheelchair - bound students in the bus and securing their

wheelchairs. This service is critical to the students ' safety

and the safety of the other students. It requir es properly

fastening the students in their chairs with chest and foot straps

to prevent them from falling from the chair or injuring their

feet during transportation.

15. Ms. Dacanay was trained in securing the students and

their wheelchairs for transport .

16. On October 29, 2012, Ms. Dacanay did not fasten the

chest straps on one student ' s wheelchair.

17. On October 30, 2012, Ms. Dacanay did not properly

secure a student ' s feet for transport on the bus.

18. Fortunately each time, other employees noticed t he

errors and corrected them.

19. On another occasion, Ms. Dacanay did not properly

fasten the chest strap of a student in a wheelchair on the bus.

Another ESE a ssociate checked the student ' s straps and tightened

them properly.

20. The students ' wheelcha irs were also strapped tightly in

the bus to prevent movement or falling. Ms. Dacanay was properly

trained on how to secure the bus hook - up straps.

21. From October forward, Ms. Dacanay routinely failed to

properly secure students for the bus. A fellow E SE a ssociate

regularly observed this and began routinely checking and

tightening the straps for the student s .

22. Specifically , Ms. Dacanay did not properly fasten the

wheelchair hook - ups on November 14 and December 4, 2012. Despite

the fact that proper ly securing the wheelchairs was one of her

duties, on December 4, 2012, Ms. Dacanay asked a student why he

had not hooked up the side straps on his wheelchair.

23. Ms. Dacanay ' s neglect of the task of securing students

in their wheelchairs was so common th at the other ESE a ssociates

who worked in Ms. Gilbert ' s class were concerned for the

children ' s safety. Consequently , they regularly checked the

wheelchairs of students for whom Ms. Dacanay was responsible to

ensure that the students were properly secured and safe. They

often found the straps loose and secured them.

24. Swimming was part of the curriculum and services for

some students. On November 5, 2012, while bringing students back

from the pool, Ms. Dacanay used only one hand to push a student

in a tall, cumbersome therapy chair. The chair was tall,

unstable, and very difficult to maneuver along the sidewalk.

With her other hand, Ms. Dacanay was escorting another student.

Two other ESE a ssociates yelled at her to stop. Ms. Dacanay did

not, and th e chair " wobbled " and went off the sidewalk.

25. Ms. Dacanay was taking prescription medicine. She did

not properly secure it, and a pill fell to the bathroom floor.

Ms. Gilbert found the pill and gave it to the school nurse,

Tomeka Miller. Ms. Dacana y went to Ms. Miller and asked her to

return the pill. She also asked if anyone else knew about the

pill. Ms. Miller advised Ms. Dacanay that Ms. Gilbert knew.

26. The ready availability of the pill to the students with

disabilities represented a potenti al risk to the students.

27. One of the students for whom Ms. Dacanay was

responsible was blind and had other issues. In the words of his

teacher , Ms. Gilbert:

That was my student who was blind. In

addition to having a lot of other issues,

he ' s a student who is transported in a

wheelchair and he kind of cruises around

furniture, but it ' s not a walker. He ' s

very, very difficult, very strong, very

stubborn. He has a lot of sensory issues,

so you can ' t hurry him to do anything. It

just makes the problem w orse.

28. Ms. Dacanay was aware of the student ' s issues and

needs.

29. On November 8, 2012, Ms. Dacanay was hurrying the

student back into the classroom. She was urging him on and

saying " come on, let ' s go. " He became agitated.

30. Ms. Gilbert instruc ted Ms. Dacanay to let the student

calm down. Ms. Dacanay did not.

31. This detrimentally affected the rest of the morning

routine, including the student ' s therapy schedule.

3 2. Ms. Dacanay denied each of the events described above.

Her denials are not credible judged in light of the conflicting

testimony, consistency of testimony among several witnesses, and

consistent reports in contemporaneously created documents.

3 3. In addition, Ms. Dacanay regularly displayed an

inability to perform her work or le arn her duties.

3 4. Despite repeated instructions, she failed to correctly

perform routine functions.

3 5. When she worked with her students and the physical

education teacher, Darlene Tickner, Ms. Tickner had to repeat

instructions and requests multiple times to get her to work.

3 6. Ms. Dacanay ' s inability to understand her duties caused

Ms. Tickner to develop a " Teacher Associate Class Expectations "

worksheet to help remind Ms. Dacanay and the other associates of

their fundamental duties. Although the worksheet was given to

all associates, Ms. Dacanay ' s repeated inability to perform the

duties of her position was the reason Ms. Tickner prepared the

worksheet.

3 7. Although Ms. Dacanay was only responsible for seven

students, she could not even remember their names.

3 8. Ms. Dacanay also demonstrated a pattern of not paying

attention to the students, preferring instead to perform chores.

For instance on September 19, 2012, when Ms. Dacanay should have

been assisting with a student activity , she left the c lassroom

area for about ten minutes and spent her time folding and storing

student bathing suits. This was after she had read and signed

the " Class Expectations " worksheet that listed " Focus on the

students and the activity, not chores " first.

3 9 . On anot her occasion, Ms. Dacanay neglected to bring a

blind student who also needed a wheelchair, because of cerebral

palsy, to the physical education class. Ms. Tickner asked

Ms. Dacanay where the student was. Ms. Dacanay said " she didn ' t

know. "

40. Ms. Tickne r sent Ms. Dacanay back to the classroom to

get the student. Ms. Dacanay returned without the student and

said " she couldn ' t get him into his chair. " Ms. Tickner had to

go get the student and bring him to the class.

41. As the " Class Expectation " workshe et notes and

Ms. Tickner had emphasized, class participation was important for

the students and participation with the students was an important

part of the associate ' s job.

4 2. Once when Ms. Tickner specifically instructed

Ms. Dacanay to work with the o ther associates getting the

students in and out of the pool, Ms. Dacanay disobeyed. Instead ,

she followed a mobile student who did not need assistance around.

4 3. On another occasion , Ms. Dacanay was supposed to

prepare the students for swimming. She rem oved the diaper from a

child who was not going swimming.

4 4. Similar issues and concerns about Ms. Dacanay ' s focus

and attention to her duties caused the physical education teacher

the year before, Mark Manley, to conclude that he could not leave

the room if Ms. Dacanay was working with the students. She

repeatedly demonstrated problems " focusing on tasks, staying on

task . . . inability to stay with a program all the time. "

4 5. The problems Ms. Dacanay had during the 2012 - 2013

school year were similar to earlier performance failures during

her time at Paul B. Stephens when she was working with

Ms. Pickering.

4 6. Ms. Cox met with Ms. Dacanay on October 18, 2012. The

letter of reprimand following that meeting summarized the

failings identified above and o thers.

4 7. The letter advised Ms. Dacanay:

[Y]ou appear to avoid work, especially

toileting/changing student. Your ability to

learn your job or perform your work

responsibilities has been questioned and

requires your teacher to constantly monitor

you to e nsure student safety. For example

you appear not to remember which student

uses which chair nor how to secure students

in their chairs. This has happened several

times. After 3 - 4 weeks in school you still

needed direction to assist students with

table a ctivities before morning group. You

have been off - task during PE and you were

not able to monitor students assigned to you

when they were in the pool. You also fell

asleep during music class. In addition to

classroom issues the assistants on the bus

wit h you have stated that you pretend to

forget how to hook up wheelchairs and

harnesses, and do not do your share on the

bus. You also fall asleep regularly on the

way home in the afternoon which also puts

more work on the other assistants.

4 8. Before work ing at Paul B. Stephens, Ms. Dacanay

received less than satisfactory ratings on her evaluations

beginning on February 20, 2007 , at Largo High School , where her

evaluation noted that she needed to improve punctuality and that

she left her assigned area with out notifying the teacher. In

all, between February 20, 2007 , and February 10, 2011,

Ms. Dacanay ' s evaluations reflect 16 instances of being evaluated

as unsatisfactory or in need of improvement in areas that include

punctuality, judgment, job knowledge, quality of work, quantity

of work, initiative and attendance.

4 9. The weight of the persuasive, credible evidence

established that Ms. Dacanay was not competent to perform her

duties, did not perform her duties, and did not improve her

performance despite being given repeated opportunities to

improve .

CONCLUSIONS OF LAW

Jurisdiction, Burden, and Authority

50. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

pursuant to sections 120.569, 120.57 (1), and 1012.40(2)(c),

Florida Statutes (2013). 1/

51. T he superintendent of the school district has the

authority to make recommendations for dismissal of school

employees pursuant to section 1012.27(5).

5 2 . The Board has the authority to dismiss employ ees

pursuant to sections 1001.42(5) and 1012.22(1)(f) , Florida

Statutes .

5 3 . District school boards have authority to " adopt rules

governing personnel matters. " § 1012.23(1) , Fla. Stat .

5 4 . Th e Board must prove that it has just cause to

terminate Ms. Daca nay ' s employment. Dileo v. Sch. Bd. Dade Cnty.

569 So. 2d 883 (Fla. 3d DCA 1990). It must prove just cause by a

preponderance of the evidence. See McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v.

Sumter Cnty. Sch. B d. , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

5 5. " Preponderance of evidence is evidence ' which as a

whole shows that the fact sought to be proved is more probable

than not. ' State v. Edwards , 536 So. 2d 288, 292 n.3 (Fla. 1st

DCA 1988). " Dufour v. Stat e , 69 So. 3d 235, 252 (Fla. 2011) .

S ee also Escambia Cnty. Elec. Light & Power Co. v. Sutherland ,

61 Fla. 167, 193; 55 So. 83, 92 (1911).

5 6. An ESE a ssociate is an " educational support employee "

under s ection 1012.40(1)(a). Section 1012.40(2)(b) permits a

school board to discharge an educational support employee for

reasons stated in the collective bargaining agreement. The

bargaining agreement here provides that Board Policy 4140 will

define just cause for dismissal.

Reasons for Discharge

5 7. The Board alleges that Ms. Dacanay violated the

following policies:

A. Board Policy 4140A(9), " Incompetence as evidenced by

inability or lack of fitness to discharge the required duty " ;

B. Board Policy 4140A(9)(a), " Failure to perform the duties

of the position " ;

C. Board Policy 4140A(19), " Failure to Correct Performance

Deficiencies " ;

D. Board Policy 4140A(20), " Insubordination, which is

defined as a continuing or intentional failure to obey a direct

order, reasonable in nature, and given by and with proper

aut hority " ; and

E. Board Policy 4140A(24), " Failure to comply with board

policy, State law, or appropriate contractual agreement. "

5 8 . Board policy 4140A(9) defines " incompetence " as an

" inability or lack of fitness to discharge the required duty. "

5 9. The p reponderance of the persuasive, credible evidence

proves that Ms. Dacanay was not competent or willing to perform

her duties , despite training and eff orts to improve her

performance .

60. Board Policy 4140A(9)(a) makes " [f]ailure to perform

the duties of t he position " an offense for which an employee may

be dismissed. The preponderance of the persuasive, credible

evidence proves a broad and continued failure by Ms. Dacanay to

perform the duties of her position, despite training and efforts

to improve her p erformance.

61. Board Policy 4140A(19) makes failure to correct

performance deficiencies grounds for dismissal. As detailed in

the F indings of F act, Ms. Dacanay was advised of multiple and

repeated performance deficiencies in 2012 , as well as 2011. As

al so detailed in the F indings of F act, Ms. Dacanay did not

correct those deficiencies despite the fact that Ms. Cox and

other supervisors made repeated efforts to correct Ms. Dacanay ' s

deficiencies by advising her of them, counseling her, and

creating t a sk l ists for her.

6 2. Board Policy 4140A(20) defines " Insubordination . . .

as a continuing or intentional failure to obey a direct order,

reasonable in nature, and given by and with proper authority. "

The persuasive evidence did not establish a direct orde r given to

Ms. Dacanay that she continually or intentionally failed to obey .

It established, amply, that Ms. Dacanay did not perform her

duties and did not improve when given the opportunity. But it

does not prove a direct order given by someone with pro per

authority that she failed to obey.

6 3. Board Policy 4140A(24) makes failure to comply with

Board p olicy, s tate law, or appropriate contractual agreement

grounds for dismissal. The F indings of F act establish violation s

of Board Policy 4140A(24).

6 4. Bo ard Policy 4140 provides that the district " generally

follows a system of progressive discipline in dealing with

deficiencies in employee work performance or conduct.

Progressive discipline may include, but is not limited to,

written counseling/conference summary, caution, reprimand,

suspension without pay, and dismissal . . . . " The district

followed a system of progressive discipline for Ms. Dacanay.

Despite the efforts of Ms. Cox, Ms. Dacanay ' s supervisors, and

her co - workers, Ms. Dacanay ' s unacceptab le behavior continued,

was repetitive, and did not respond to progressive discipline

procedures. Board Policy 4140, Disciplinary Guideline (E)

provides that dismissal is appropriate in these circumstances.

6 5. Board Policy 4140C identifies 12 aggravating or

mitigating circumstances to be considered in imposing a penalty.

All but four of them weigh in favor of dismissal. The four that

do not are actual damage, pecuniary gain, length of employment,

and whether the misconduct was motivated by unlawful

discr imination.

6 6. Of the nine that weigh in favor of dismissal, the first

is the threat posed to the health, safety , or welfare of the

students. Ms. Dacanay ' s inability to perform her duties placed

the very vulnerable population of students , which she served , at

risk for injury.

6 7. The second is the severity of the offense. Not

performing the basic functions of a position, especially when

vulnerable students with disabilities are depending on you , is a

severe offense.

6 8. The third is the degree of studen t involvement. All of

Ms. Dacanay ' s failings directly involved the students for whom

she was responsible.

6 9. The fourth is the " disciplinary history of the

employee, including the number of offenses, the length of time

between offenses as well as the sim ilarity of offenses. "

Ms. Dacanay ' s offenses repeated for months and were quite

similar.

70. The fifth is the lack of efforts by Ms. Dacanay to

rehabilitate her failings.

71. The sixth is the lack of attempts by Ms. Dacanay to

correct her deficiencies.

7 2. The seventh is the impact on students and co - workers.

Ms. Dacanay ' s deficiencies denied students the care and attention

they needed and imposed additional burdens on her co - workers.

7 3. The eighth is the " employee ' s evaluations. "

Ms. Dacanay ' s history of evaluations has multiple warnings and

reprimands for failings very similar to the specific offenses

upon which the District relies for her discharge.

7 4. Consequently , the aggravating factors outweigh the

mitigating factors .

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Pinellas County School Board

enter a final order finding that there is just cause to terminate

Ms. Dacanay ' s employment and terminating her professional service

contract for j ust cause pursuant to section 1012.33, Florida

Statutes.

DONE AND ENTERED this 27th day of November , 2013 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 27th day of November , 2013 .

ENDNOTE

1/ All references are to the 2013 edition of the Florida

Statutes.

COPIES FURNISHED:

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Michael A. Grego, Superintendent

Pinellas County School Board

301 4th Street Southwest

Largo, Florida 33770 - 2942

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Laurie A . Dart, Esquire

Pinellas County Schools

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Rose M. Dacanay

2424 8th Avenue, Southwest

Largo, Florida 33770 - 2944

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.