18-003886TTS Palm Beach County School Board vs. Lori Schwartz Status: Closed Recommended Order on Thursday, June 13, 2019.

Summary: The School Board has just cause to suspend Respondent, an ESE teacher, for ten days without pay based on her gross insubordination and misconduct in office for failure to follow directives to complete her work in a timely and accurate manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 3886TTS

LORI SCHWARTZ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal ad ministrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by

video teleconference with locations in West Palm Beach and

Tallahassee, Florida, on March 12 and 13 , 2019.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of the General Counsel

3300 Forest Hill Boulevard , Suite C331

West Palm Beach, Florida 33406

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, Palm Beach County

School Board ( " Board " ), to susp end Respondent, Lori Schwartz,

from her position as a Speech and Language Pathologist ( " SLP " )

for a period of ten days without pay.

PRELIMINARY STATEMENT

On June 20, 2018 , at its scheduled meeting, Petitioner, the

Board , took action to suspend Respondent, Lori Schwartz , from

h er teaching position at Sunrise Park Elementary School

( " Sunrise Park " ) for ten days without pay. Respondent timely

requested an administrative hearing. The Palm Beach County

Public School System ( " District " ) referred the matter to t he

Divisi on of Administrative Hearings ( " DOAH " ) on July 25, 2018 ,

to assign an Administrative Law Judge to conduct the final

hearing. The final hearing initially was set for October 1

and 2, 2018 . T he final hearing was continued twice at the

request of t he parties.

The final hearing was held March 12 and 13, 2019 . The

District charged Respondent with violating the following School

Board Policies: School Board Policy 0.01(2)(c), Commitment to

the Student ; School Board Policy 1.013, (1)(4), Responsibilit ies

of School District Personnel and Staff; School Board

Policy 3.10 (6), Conditions of Employment; School Board

Policy 3.02, (4)(a)(d)(f)(h)(j), Code of Ethics ; and School

Board Policy 2.34, Records and Reports.

At the final hearing, the Board present ed the testimony of

the following: Respondent; Susan Panajatov, Assistant

Behavioral Needs II; Alicia Steiger, Principal of Sunrise Park

E lementary; Eileen Petersen, SLP Specialist; and Brenda Johnson ,

Human Resources Manager . The Board ' s Exhibits 1 thro ugh 7, 9

through 14, 16 through 23, and 27 (except for p ages B ates

stamped 170 and 171) were received into evidence. Respondent

testified on h er own behalf and presented the testimony of Traci

Boysaw , Peer Assistance Review ( " PAR " ) consultant, and Lisa

Ne wman, Exceptional Student Education ( " ESE " ) Coordinator.

Respondent ' s Exhibit 1 was admitted into evidence.

The two - volume final hearing Transcript was filed on

April 11, 2019 . The parties requested an extension of time

within which to file their pr oposed recommended orders , which

was granted. The parties t imely filed proposed recommended

orders, which were given consideration in the preparation of

this Recommended Order. Unless otherwise indicated, all

statutory references are to the versions in e ffect at the time

of the alleged violations.

FINDING S OF FACT

The Parties

1. The Board is the constitutional entity authorized to

operate, control, and supervise the District. Pursu ant to

Article IX, section 4(b) of the Fl orida Constitution, and

section 1001.32, Florida Statutes, the District has the

authority to discipline employees pursuant to section

1012.22(1)(f) , Florida Statutes .

2. Respondent began her employment with the District on

August 3, 2005. Respondent is employed with Petitioner as a n

ES E teacher, teaching SLP at Sunrise Park . She has been a SLP

for 32 years.

3. Respondent ' s employment is governed by the collective

bargaining agreement between the District and the Palm Beach

County C lassroom Teachers Association ( " CBA " ), Board p olicies,

Florida la w, and Department of Education r ules.

4. As a n SLP, Respondent ' s duties include: testing and

providing therapy to students who need assistance in speech or

language skills; writing Individual Education Plans ( " IEPs " );

writing quarterly progres s notes for her students; drafting the

Plan of Care for each student; reevaluating students; and

billing for Medicaid.

5. These duties are time - sensitive because a student ' s

course of study and evaluation for needed accommodations to

provide appropriate academic support rely upon the IEP and Plan

of Care. There are also strict federal guidelines regarding

when these items need to be accomplished.

6. In 2001, Respondent was diagnosed with multiple

scleros is ( " MS " ). MS is a progressive debilitating dise ase that

results in physical deterioration. As a result of her MS,

Respondent has difficulty walkin g, using her hands, seeing,

concentrating, and prioritizing tasks. Respondent testified

that sh e continues to work because she " want(s) to help people

comm unicate better and learn and progress to the next level. "

7. To assist Respondent in performing her assigned duties,

the District provided a variety of supports including: a walker

and scooter to get around school; the assistance of a one - on - one

paraprof essional to type and write for Respondent and to

transport SLP students from their sessions with Respondent back

to their classrooms; an enlarged computer screen to help her

see; and individual coaching on time management and

prioritization of tasks by Tra ci Boysaw, a teacher with the

title of PAR Counselor. Respondent testified that she was

provided with all the assistance she needed to perform her

assigned duties. Respondent was also referred to the District ' s

Employee Assistance P lan but declined to av ail herself of that

opportunity.

Circumstances Giving Rise to Respondent ' s Discipline

8. In accordance with the CBA, Respondent was subject to

increasing levels of discipline for failing to follow directives

and meet deadlines for certain tasks prior to her ten Î day

suspension.

9. On March 30, 2017, Respondent received a Verbal

Reprimand with Written Notation ( " Verbal Reprimand " ) from

Sunrise Park Principal, Alicia Steiger, for insubordination for

not complying with directives to complete certain work by

assigned deadlines given to her on September 2, 2016, and

January 27, 2017.

10. In this Verbal Reprimand, Respondent was directed to

adhere to all deadlines and complete testing and reevaluation of

students by deadlines in April. She was also di rected to ensure

all documents for IEPs and reevaluations were completed before

the specific meeting with the IEP team was scheduled.

Respondent was also directed to submit weekly logs by the end of

the week to Principal Steiger and to follow all Board po licies.

She was advised that failure to adhere to these directives would

be considered insubordination and result in further discipline.

11. On May 23, 2017, Respondent received a Written

Reprimand issued by Principal Steiger for insubordination and

viol ation of Board Policies 1.013, Responsibilities of School

District Personnel and Staff; 3.10, Conditions of Empl oyment

with the District; 3.02, Code of Ethics; and 2.34, Records and

Reports . Respondent was cited for not following the directives

of the Ver bal Reprimand and continuing to ignore deadlines for

student testing, reevaluations, and submitting documentation.

She also came to an IEP meeting on March 17, 2017 , " wholly

unprepared. " Respond ent was specifically advised, " [y] our

actions demonstrate a failure to fulfill the responsibilities of

a teacher and to protect the learning environment. "

12. Respondent received a second Written Reprimand issued

by Dianna Weinbaum, Director of Professional Standards, on

December 7, 2017. Like her prior disciplin e, Respondent was

cited for failing to adhere to testing, meet student evaluation

deadline s, and complete Plan of Care documentation following

each IE P meeting. She was advised her failure to abide by prior

directives constituted insubordination and viola ted various

School Board policies.

13. Despite this progressive discipline and the extension

of deadlines within which to complete certain tasks, Respondent

failed to accurately or timely complete assignments.

14. On March 14, 2018, Respondent was advise d that the

Office of Personnel Services ( " OPS " ) was openi ng an

investigation into her on going " gross insubordination. " On

April 4, 2018, Respondent was informed in writing that the

investigation w as nearing completion and a pre determination

meeting was se t for April 17, 2018. Respondent was advised that

she was being investigated for policy violations related to

failure to fulfill responsibilities as a teacher, ethical

misconduct, and gross insubordination.

15. The investigation confirmed that Respondent failed to

meet specific deadlines and did not " complete work with

fidelity. " Respondent submitted work replete with errors after

multiple correction attempts or in some cases, not at all. This

was despite years of additional support and close direction from

Eileen Peterson, another SLP at Sunrise Park who provided

Respondent with technical assistance for seven years.

Respondent was also provided a personal assistant, Susan

Panatojov, who helped her with clerical duties and physically

retrieving students for testing and therapy.

16. Respondent was also provided an additional eight hours

per week to assist her in getting her work done and additional

time to test her students. The District provided all

accommodations which were requested by Respondent. D espite this

extra assistance and reduced work load, Respondent still

submitted work with multiple errors and on an untimely basis.

17 . The April 17, 2018 , pre determination meeting was held

as scheduled and Respondent was provided an opportunity to

provid e additional information, dispute, explain, or elaborate

on the information from the investigative report.

18 . On May 29, 2018 , Respondent was provided notice that

the District Superintendent intended to recommend a ten - day

suspension without pay to the B oard at its June 20, 2018,

meeting. The Board voted to accept the recommendation and this

decision was timely challenged by Respondent.

19 . At final hearing, Respondent admitted that her work

was often untimely, contained errors, and that she had great

d ifficulty in setting priorities and managing her time. She

acknowledged that she missed the deadlines provided in the

Verbal and Written Reprimands.

20 . Petitioner argues that this behavior is a direct

result of her medical condition, that she never refu sed an

assignment, and that it was unintentional. However, Petitioner

also conceded that she never advised Principal Steiger that she

could not perform her job due to her physical challenges, was

provided all requested accommodations, trained properly on how

to perform her assigned tasks, and given an extensive variety of

support services to help her perform the essential function s of

her job.

CONCLUSIONS OF LAW

21 . DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuan t to sections 120.569 and

120.57(1), Florida Statutes (2018).

22 . This is a disciplinary proceeding in which the Board

in its Second Amended Administrative Complaint ( " Administrative

Complaint " ) seeks to suspend Respondent from her SLP pos ition,

without p ay, for ten days for violating the following:

A. School Board Policy 0.01(2)(c),

Commitment to the Student;

B. School Board Policy 1.013, (1)(4),

Responsibilities of School District

Personnel and Staff;

C. School Board Policy 3.10 (6), Conditions

of Employment;

D. School Board Policy 3.02,

(4)(a)(d)(f)(h)(j), Code of Ethics ;

and

E. School Board Policy 2.34, Records and

Reports.

2 3 . Respondent is an instructional employee, as that term

i s defined in section 1012.01(2) . Section 1012.33( 1)(a) and

(6)(a) authorize the suspension and termination of instructional

personnel only for " just cause. " " Just cause " is defined in

section 1012.33(1)(a) t o include " misconduct in office " and

" gross insubordination. "

2 4 . To suspend Respondent ' s e mployment, Petitioner must

prove that Respondent com mitted the acts alleged in the

p etition; that those acts violate the laws, ru les, and policies

cited in the p etition; and that the violation s of these laws,

rules, and policies constitute just cause for h er suspension.

§ 1012.33(1)(a), (6), Fla. Stat .

2 5 . Petitioner has also charged R espondent with violating

Florida Administrative Code R ule 6A - 5.056( 2), which states:

" Just cause " means cause that is legally

sufficient. Each of the charges upon whi ch

just cause for a dismissal action against

specified school personnel may be pursued

are set forth in Section s 1012.33 and

1012.335, Florida Statutes. In fulfillment

of these laws, the basis for each such

charge i s hereby defined:

(2) " Misconduct in O ffice " means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6A - 10.080, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in F lorida as adopted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

2 6 . Ordinarily, the evidentiary burden in disciplinary

proceedings in which a school board proposes to suspend or

terminate instructional personnel is a " preponderance of the

evidence. " See , e.g. , McNeill v. Pinellas C ty . Sch. Bd. , 678

So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade

C ty. , 569 So. 2d 883 (Fla. 3d DCA 1990). However, where, as

here, the School B oard has agreed through collective bargaining

to a more demanding evidentiary standard, it must act in

accordance with the applicable contract. See Chiles v. United

Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1993); Palm Beach

C ty. Sch. Bd. v. Zedrick Barber , Case No. 15 - 0047 (Fla. DOAH

Aug. 31, 2015; PBCSB Oct. 13, 2015).

2 7 . Article II, secti on M of the CBA , provides that

" disciplinary action may not be taken against an employee except

for just cause, and this must be substantiated by clear and

convincing evidence which supports the recommended disciplinary

action. " Accordingly, Petitioner ha s the burden of proof in

this proceeding by clear and convincing evidence.

2 8 . This burden, described in Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983), and later adopted by the

Florida Supreme Court in In re Davey , 645 So. 2d 398, 404 (Fla.

1994), requires the following:

[T]he evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the f acts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

2 9 . Whether Respondent committed the c harged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 66 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. J amerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

30 . School Board Policy 0.01(2)(c) Commitment to the

Student provides, " [i] n fulfilling his obligations to the

student, the educator s hall make reasonable effort to prote ct

the student from conditions h armful to learning or to health and

safety. "

31 . The ability of the District to provide ESE stu dents

with services that enable them to obtain a free and appropriate

public education, as mandated by federal law, is dependent upon

ESE teachers adheri ng to strict deadlines and timely completing

testing, reevaluations, IEPs, Programs of Care , and regular

progress assessments.

32 . Respondent ' s own admission s and the overwhelming

evidence presented by the Board proved by clear and convincing

evide nce that Respondent repeatedly failed to complete her tas ks

and adhere to timelines which resulted in her students not

receiving the services they were entitled to and needed.

3 3 . School Board Policy 1.013, (1)(4), Responsibilities of

School District Personnel and Staff states, " [i] t shall be the

responsibility of the personnel employed by the district school

board to carry out their assigned duties in accordance with

federal laws, rules, state statutes, state board of education

rules, school board po licy, superintendent ' s administrative

directives and local school and area rules. "

3 4 . Respondent violated School Board Policy 1.013 when she

knew of the requirements and directives , but failed to adhere to

them after being provided with a significan t amount of

assistance. She received w eekly one - on - one coaching and she was

provided with a personal assistant who helped her with clerical

duties and with physically retrieving students .

3 5 . T he evidence also clearly and convincingly

demonstrates t hat Respondent vi olated School Board Policy

3.10 (6), Condit ions of Employment , which states, " [t] he District

requires its employees to carry out their responsi bilities in

accordance to School Board Policy 1.013 (as may be amended),

their job descriptions a nd reasonable directives from their

supervisors that do not pose an immediate serious hazard to

health and safety or clearly violate established law or policy. "

3 6 . There was no testimony or evidence that the directives

given by Principal Steiger in the various memorandums and

reprimands were unreasonable , posed an immediate serious hazard

to health and safety , or clearly violated established law or

policy. To the contrary, Respondent acknowledged that she

understood the directives and even participa ted in setting the

timelines. Consequently, the Board has carried its burden to

show that Respondent vi olated School Board Policy 3.10 (6).

3 7 . Respondent was also cited for violating School Board

Policy 3.02(4)(a)(d)(f)(h)(j), 1/ the Code of Ethics. This policy

provides in pertinent part:

Each employee agrees and pledges:

f. To take responsibility and be

accountable for his or her acts or

omissions.

h. To cooperate with others to protect and

advance the District and its students.

j. To be ef ficient and effective in t he

delivery of all job duties.

3 8 . Respondent ' s ongoing failure to provide accurate and

timely work product violated School Board Policy 3.02(4)(f) , (h) ,

and (j) . Respondent provided no rational explanation as to why

she co uld not or would not submit accurate, complete , or timely

work product. The clear and convincing evidence presented by

the Board was that Respondent was wholly inefficient and

in effective in the delivery of her job duties.

3 9 . By failing to complete the pre scribed reports of

student testing, re testing , and IEP documents , Respondent

violated School Board Policy 2.34, Records and Reports , which

states:

All Board employees shall faithfully and

accurately keep such records as may be

required by law, St ate Board regulations,

School Board policy or their supervisor.

Such records shall include pupil attendance,

property inventory, funds and other types of

information. Reports of such records shall

be submitted on forms prescribed for such

purposes and at designated intervals or

dates.

40 . The evidence demonstrated that the District did

everything it could to help Respondent be successful in her

duties as a n SLP. The Board proved by clear and convincing

evidence that Respondent committed gross insu bordination by

repeatedly ignoring specific directions regarding the accurate

and timely completion of assigned tasks. The Board also proved

by clear and convincing evidence that Respondent ' s violation of

the above - cited policies constitutes " misconduct i n office. " As

such, the Board had just cause to suspend Respondent ' s

employment without pay for ten days. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Beach County School Board

uphold the suspension of Respondent ' s employment for ten days

without pay.

DONE AND ENTERED this 13th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative He arings

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 13th day of June , 2019 .

ENDNOTE S

1/ S chool Board Policy provisions 3.02(4)(a) and (d) are

aspirational in nature and were not demonstrated by the Board.

Accordingly , they are not addressed in this Recommended Order

due to the other violations of the School Board Policy proven by

the Board.

2/ Respondent ' s decades of dedicated service to ESE students is

highly commendable. Unfortunately, it does not mitigate the

harm done to these same students by failing to provide timely

assessments resulting in the failure to provide much needed

services .

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of the General Coun sel

3300 Forest Hill Boulevard , Suite C331

West Palm Beach, Florida 33406

(eServed)

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcora n

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Donald E. Fennoy II , Ed. D.

Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard , Suit e C - 316

West Palm Beach, Florida 33406 - 5869

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 w ith the agency that

will issue the Final Order in this case.