99-005125 Dade County School Board vs. Yvonne M. Weinstein Status: Closed Recommended Order on Monday, September 11, 2000.

Summary: Teacher is incompetent as a result of inefficiency and incapacity, and her employment with the School Board should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MIAMI-DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 99-5125

)

YVONNE M. WEINSTEIN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

May 2 and 3, 2000, in Miami, Florida, before Patricia Hart

Malono, the duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Miami- Dade County

1450 Northeast Avenue, Suite 400

Miami, Florida 33132

For Respondent: G. Ware Cornell, Jr., Esquire

Post Office Box 14633

Fort Lauderdale, Florida 33302

STATEMENT OF THE ISSUE

Whether the Respondent should be dismissed from her

employment as a teacher because of incompetency, as alleged in

the Petitioner's letter to the Respondent dated November 16,

1999, and in the Notice of Specific Charges filed with the

Division of Administrative Hearings on December 22, 1999.

PRELIMINARY STATEMENT

In a letter dated November 18, 1999, the School Board of

Miami-Dade County, Florida ("School Board"), notified Yvonne M.

Weinstein that it had taken action to suspend her from her

employment as a teacher and to initiate dismissal proceedings

against her "for incompetency." Ms. Weinstein timely requested

an administrative hearing, and the School Board forwarded the

matter to the Division of Administrative Hearings for assignment

of an administrative law judge. On December 22, 1999, the

School Board filed with the Division of Administrative Hearings

a Notice of Specific Charges in which it included specific

allegations intended to support the charge of incompetency.

Ms. Weinstein was charged in Count I of the Notice of Specific

Charges with incompetency because of inefficiency, as set forth

in Sections 230.23(5)(f) and 231.36(4)(c), Florida Statutes, and

in Rule 6B-4.009(1)(a)1. and/or 2., Florida Administrative Code,

and in Count II of the Notice of Specific Charges with

incompetency because of incapacity, as set forth in

Sections 230.23(5)(f) and 231.36(4)(c), Florida Statutes, and in

Rule 6B-4.009(1)(b)1. and/or 2., Florida Administr ative Code.

Pursuant to notice, the final hearing was held on

May 2 and 3, 2000. At the hearing, the School Board presented

the testimony of Larry Harmon, Charles Gibbs, Blanca M. Valle,

Thomasina O'Donnell, and, on rebuttal, Joyce Annunziata.

Petitioner's Exhibits 1 through 24 were offered and received

into evidence. Ms. Weinstein testified in her own behalf and

presented the testimony of David Michael Feazell and Tyrone S.

Luis. Respondent's Exhibits 1 through 9, 11, and 12 were

offered and received into evidence. Respondent's Exhibit 10 was

offered into evidence but rejected; the exhibit was accepted as

a proffer.

The two-volume Transcript of the final hearing was filed

with the Division of Administrative Hearings on June 30, 2000.

The parties timely submitted proposed findings of fact and

conclusions of law, which have been considered in the

preparation of the Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board of Miami-Dade County, Florida, is the

entity authorized to operate the public schools in the county

and to "provide for the appointment, compensation, promotion,

suspension, and dismissal of employees" of the school district.

Section 4(b), Article IX, Florida Constitution; Section

230.23(4) and (5), Florida Statutes (1997).

2. At the times material to this proceeding, Ms. Weinstein

was an elementary school teacher employed under a continuing

contract by the School Board and assigned to Miami Heights

Elementary School ("Miami Heights Elementary"). Ms. Weinstein

has been employed by the School Board since 1968. Ms. Weinstein

is a member of United Teachers of Dade and is governed by the

Contract Between the Dade County Public Schools and the United

Teachers of Dade ("UTD Contract").

3. During the 1998-1999 school year, Ms. Weinstein taught

a second grade class at Miami Heights Elementary. She was

placed on alternate assignment on February 9, 1999, and, in

March 1999, she took medical leave, which was approved by the

School Board.

4. On October 13, 1999, Ms. Weinstein was advised that she

must either resign or retire from her position as a teacher with

the School Board by October 2 0, 1999, and that, if she did not

do so, a recommendation would be made to the School Board at its

November 17, 1999, meeting that she be dismissed from her

employment. The decision that Ms. Weinstein could no longer

teach in the Miami-Dade County public school system was based on

two grounds. First, she had received an unacceptable evaluation

for the 1998-1999 school year based on the determination that

her teaching performance was not acceptable and that she had

failed to remediate the deficiencies identified in the TADS

formal observations conducted in September and November 1998 and

in January 1999. Second, two psychologists had found

Ms. Weinstein medically unfit for duty as an elementary school

teacher as a result of psychological evaluations conducted in

January 1999 and August 1999.

Performance as a teacher

A. Parent and teacher complaints

5. Blanca M. Valle became principal of Miami Heights

Elementary in June 1997. Soon after she assumed her duties,

Ms. Valle received a letter from a parent co mplaining that

Ms. Weinstein allegedly told her son he was "stupid"; the parent

requested that her son not be assigned to Ms. Weinstein's class

for the upcoming school year. At the time, Ms. Weinstein was

teaching in a summer program at South Miami Heights Elementary

School. Although the charge made by the parent was not

substantiated, 1/ the child was assigned to a different

teacher for the summer program, and Ms. Valle made sure that the

child was not assigned to Ms. Weinstein's class for the 1997-

1998 school year.

6. Ms. Valle assigned Ms. Weinstein to teach a

kindergarten class during the 1997-1998 school year. Ms. Valle

received several letters from parents in September 1997

complaining about Ms. Weinstein's treatment of their children.

One parent complained that Ms. Weinstein ignored her son when he

raised his hand to participate in class; another parent asked

that his child be assigned to another kindergarten class because

the child felt intimidated and frightened in Ms. Weinstein's

class; another parent complained that Ms. Weinstein was not

aware that her daughter was lost in the cafeteria for 45 minutes

after lunch; another parent complained that her son's school

supplies were stolen from the classroom, his homework was not

collected by Ms. Wei nstein, and his shirt was cut in several

places by another student during the time he was under

Ms. Weinstein's supervision.

7. As a result of the complaints, Ms. Valle assigned

Ms. Weinstein in October 1997 to teach a third grade class that

had just been created at Miami Heights Elementary to accommodate

a greater-than-expected number of students. In addition to re-

assigning Ms. Weinstein, Ms. Valle assigned another teacher to

act as her mentor, assigned the grade level chairperson to work

closely with her, and referred her to the School Board's

Employee Assistance Program. 2/

8. After Ms. Weinstein was transferred, Ms. Valle received

several letters from parents of third grade students complaining

about Ms. Weinstein and asking that their children be

transferred to another class. One parent complained that,

during a field trip the parent was chaperoning, Ms. Weinstein

spent an inordinate amount of time berating students for

misbehavior, to no effect; she lacked control of the class, and

she was disorganized; another parent complained that, during a

conference with Ms. Weinstein and Ms. Clayton, Ms. Weinstein

lied about sending progress reports home to the parent and said

that her daughter was crazy.

9. During the 1998-1999 school year, Ms. Weinstein was

assigned to teach a second grade class. Ms. Valle received

several letters from parents complaining about Ms. Weinstein and

requesting that their children be transferred to another class.

Several parents stated that they wanted their children

transferred to another class because they had received negative

reports from other parents regarding Ms. Weinstein. One parent

complained that her son cried every morning and did not want to

go to school, that Ms. Weinstein told the parent that her son

lied to the parent and to himself, and that Ms. Weinstein did

not have a professional appearance; another parent complained

that Ms. Weinstein ignored her daughter when she raised her hand

to turn in her homework.

10. Crystal Coffey was the assistant principal at Miami

Heights Elementary during the 1998-1999 school year, which was

her first year in the position at Miami Heights Elementary. It

was not unusual for parents to approach her and ask that their

child be transferred out of Ms. Weinstein's class.

11. At the end of the 1998-1999 school year, when

Ms. Weinstein was on medical leave, Ms. Valle received letters

from three teachers complaining about Ms. Weinstein. The second

grade level chairperson during the 1998-1999 school year

complained that Ms. Weinstein was very difficult to work with

and did not grasp the curriculum or understand how to present

lessons. Another teacher commented that she had observed

Ms. Weinstein engage in a pattern of unprofessional and often

bizarre behavior over the years. A teacher who team-taught

language arts with Ms. Weinstein wrote that, among other things,

Ms. Weinstein would not let students go to the rest room, that

on two occasions Ms. Weinstein sat at her desk during class and

ate a chef salad and a tuna salad with her hands, and that

Ms. Weinstein would put a "bad behavior" check mark beside

children's names for the most minor offenses.

B. Observations of Ms. Weinstein's teaching performance

12. Ms. Weinstein's performance as a teacher was rated

acceptable overall and acceptable in every performance category

in each annual evaluation from the 1978-1979 school year 3/

through the 1997-1998 school year.

13. Ms. Valle signed Ms. Weinstein's Teacher Assessment

and Development System ("TADS") 4/ Annual Evaluation for the

1997-1998 school year based on a formal TADS observation

conducted on April 13, 1998, by the then-assistant principal of

Miami Heights Elementary, Alice Clayton. Ms. Clayton prepared a

CAI-Post Observation Report for the April 13, 1998, TADS

observation rating Ms. Weinstein's performance acceptable in

each category assessed. She also rated Ms. Weinstein's

performance acceptable for each indicator in each category.

14. Ms. Valle conducted informal observations of the

classroom performance of each of the teachers in Miami Heights

Elementary; it was her practice to visit all of the classrooms

in the school at least once a day. During her informal

observations of Ms. Weinstein's classroom performance, she

observed students who were not on task, discipline problems, and

a general lack of teaching and learning in the classroom.

15. Ms. Coffey made it a practice to informally observe

each teacher's classroom at least three times each week.

Ms. Coffey informally observed Ms. Weinstein's classroom an

average of three times each week during the 1998-1999 school

year. At the beginning of the school day, Ms. Coffey would

often find Ms. Weinstein sitting at her desk in the classroom

eating her breakfast or looking "spacey," apparently unaware

that the classroom door was open and that a number of parents

were trying to talk with her and/or trying to get their children

organized for the day.

16. On September 18, 1998, Ms. Valle, who was trained in

the use of TADS, conducted a formal TADS observation of

Ms. Weinstein' s classroom performance and completed both a CAI

Post-Observation Report and a Record of Observed

Deficiencies/Prescription for Performance Improvement with

respect to the observation. Ms. Valle rated Ms. Weinstein's

classroom performance acceptable in three categories listed on

the CAI Post-Observation Report: knowledge of subject matter,

teacher-student relationships, and assessment techniques.

17. Ms. Valle rated Ms. Weinstein unacceptable in three

categories on the CAI Post-Observation Report: preparation and

planning, classroom management, and techniques of instruction.

The Record of Observed Deficiencies contains numerous references

to Ms. Weinstein's failure to use verbal or non-verbal

techniques to redirect students who were off task; rather,

Ms. Valle observed that Ms. Weinstein ignored students who were

talking and playing and generally behaving poorly, and she

seemed to be unaware of the students' behavior in her classroom.

Ms. Valle also observed that Ms. Weinstein ignored students who

raised their hands with questions or to contribute to the class

discussion, did not provide background information for her

lesson or any explanation of how to do the problems assigned,

did not acknowledge that many of the children were confused by

the lesson, and did not provide closure to the lesson.

18. On November 16, 1999, Ms. Coffey, who was trained in

the use of TADS, conducted a formal TADS observation of

Ms. Weinstein's classroom performance and completed both a CAI

Post-Observation Report and a Record of Observed

Deficiencies/Prescription for Performance Improvement with

respect to the observation. Ms. Coffey rated Ms. Weinstein's

classroom performance acceptable in two categories listed on the

CAI Post-Observation Report: knowledge of subject matter and

assessment techniques.

19. Ms. Coffey rated Ms. Weinstein unacceptable in four

categories on the CAI Post-Observation Report: preparation and

planning, classroom management, techniques of instruction, and

teacher-student relationships. Ms. Coffey observ ed that

Ms. Weinstein did not follow her lesson plan and went beyond the

time allotted for the lesson, leaving the teacher who was to

teach the next lesson knocking at the classroom door for over

five minutes. Ms. Coffey noticed that students already had

completed the workbook page for the lesson, and, in Ms. Coffey's

opinion, Ms. Weinstein was not teaching a new lesson during the

observation but one she had already taught. Ms. Coffey observed

that Ms. Weinstein did not use any verbal or non-verbal

techniques to redirect the many students who were off task and

that she put check marks for bad behavior and stars for good

behavior beside students' names, which she had written on the

chalk board, without providing any explanation to the students

and often for no discernable reason. Ms. Coffey also observed

that Ms. Weinstein often ignored students' inappropriate

behavior, did not monitor whether the students were learning the

lesson, did not provide feedback to the students, and did not

respond to students who had questions.

20. A Conference-for-the-Record was held on December 8,

1998, to discuss Ms. Weinstein's September and November

performance assessments and related matters and her future

employment status with the School Board. Ms. Valle and

Ms. Coffey attended the conference, as well as Ms. Weinstein and

two union stewards. Ms. Valle discussed the two TADS formal

observations with Ms. Weinstein, as well as the prescriptive

activities assigned in the observation reports and ways in which

Ms. Valle and M s. Coffey would assist her to improve her

teaching performance. Ms. Weinstein was advised that

disciplinary action would be considered if her performance did

not improve.

21. On January 25, 2000, Ms. Valle conducted her second

formal observation of Ms. W einstein's classroom performance, and

she completed both a CAI Post-Observation Report and a Record of

Observed Deficiencies/Prescription for Performance Improvement

with respect to the observation. Ms. Valle rated

Ms. Weinstein's classroom performance ac ceptable in three

categories listed on the CAI Post-Observation Report:

preparation and planning, knowledge of subject matter, and

teacher-student relationships.

22. Ms. Valle rated Ms. Weinstein unacceptable in three

categories on the CAI Post-Observation Report: classroom

management, techniques of instruction, and assessment

techniques. At the time of the second observation,

Ms. Weinstein had not remedied many of the unsatisfactory

teaching behaviors Ms. Valle had observed in her formal

observation in September 1998. The lesson observed by Ms. Valle

on January 25, 1999, was on the concepts of solid, liquid, and

gas, but Ms. Valle observed that Ms. Weinstein did not use any

supplemental materials or hands-on activities to teach the

students, nor did she provide necessary background information

or closure for the lesson. Ms. Valle observed that

Ms. Weinstein did not call on students who had raised their

hands with questions or to contribute to the class discussion,

did not provide feedback to help students who were confused by

the lesson, failed to use verbal or non-verbal techniques to

redirect students who were off task, and ignored students who

were off task, seemingly unaware of their behavior. In

addition, Ms. Valle found that Ms. Weinstein had virtu ally no

documentation to support grades for the students: As of

January 25, 1999, the most recent grade recorded in

Ms. Weinstein's grade book was for December 9, 1998, and there

were no assessments and very little work contained in the

students' folders.

23. On June 8, 1999, Ms. Valle prepared a memorandum

regarding Ms. Weinstein's TADS Annual Evaluation for the 1998-

1999 school year, in which Ms. Valle rated Ms. Weinstein

unacceptable in every category of classroom assessment;

Ms. Valle rated Ms. Weinst ein acceptable in professional

responsibilities. The memorandum was prepared in lieu of

conducting a conference-for-the-record because Ms. Weinstein was

on extended medical leave. In the memorandum, Ms. Valle advised

Ms. Weinstein that her performance wa s unacceptable because the

deficiencies identified in the formal TADS observations in

September and November 1998 and January 1999 had not been

remediated. Ms. Valle advised Ms. Weinstein that the assessment

process would continue when she returned to Miami Heights

Elementary.

24. Had Ms. Weinstein not gone on medical leave in

March 1999, she would have been entitled to at least one, and

perhaps two, formal TADS observations conducted by a School

Board administrator other than Ms. Valle and Ms. Coffey. A s it

was, no external TADS observation was conducted, and the TADS

assessment process was not completed.

Fitness for duty as a teacher

25. In a memorandum to the Office of Professional

Standards dated January 13, 1999, Ms. Valle requested that

Ms. Weins tein be given a fitness evaluation because she had

observed Ms. Weinstein engage in behavior during the 1998-1999

school year that Ms. Valle considered unusual. Ms. Valle

attached to the memorandum letters that Ms. Weinstein had

prepared requesting that the parents of various students sign a

statement "for her autograph book" to the effect that

"Ms. Weinstein is a good teacher"; Ms. Weinstein passed the

letters out to students and parents and disrupted classes when

she took letters to other teachers and asked that they give them

to the students whose names she had written on the letters.

Both parents and teachers complained to Ms. Valle about these

letters.

26. Ms. Valle observed Ms. Weinstein engage in other

behavior that Ms. Valle considered unusual: M s. Weinstein came

to school dressed in a manner that Ms. Valle considered

inappropriate, and her hair was often untidy; during the winter,

Ms. Weinstein sometimes wore a hat pulled down to her eyes the

entire day; during a meeting with Ms. Valle and others ,

Ms. Weinstein took a pair of leopard-print gloves out of a box

she carried and put on the gloves; Ms. Weinstein attended a PTA

meeting wearing a black see-through skirt and blouse;

Ms. Weinstein gobbled her food and ate food such as tuna salad

with her hands; Ms. Weinstein walked in the school halls with a

blank look on her face. In addition, Ms. Valle noted that

Ms. Weinstein had excessive absences from school.

27. Ms. Coffey observed Ms. Weinstein engage in behavior

she considered unusual: When she had conferences with

Ms. Weinstein, Ms. Weinstein would not look at her or respond to

questions or statements except to say that "it's not true";

Ms. Weinstein wore a fur-like hat and long leopard gloves on hot

days and sometimes walked around school under an umbrella when

it was not raining; and Ms. Weinstein often had a "spacey" look

and seemed not to understand what was being said to her.

28. In response to Ms. Valle's request that Ms. Weinstein

be referred for a fitness evaluation, a Conference-for-the-

Record was held in the Office of Professional Standards on

January 27, 1999, to consider, among other things,

Ms. Weinstein's performance assessment and her medical fitness

to perform her assigned duties. The Summary of the Conference-

for-the-Record reflected that Ms. Weinstein was advised that her

absences were considered excessive because she used more sick

leave than she had accrued, and the two formal TADS observations

completed in September and November 1998 were discussed.

Ms. Weinstein acknowledged that the School Board had the right

to require that she be evaluated to determine her fitness for

duty, and she chose to be evaluated by Dr. Larry Harmon, whose

name appeared on a list of psychologists approved by the School

Board. Ms. Weinstein appended a two-page response to the

Summary of the Conference-for-the-Record in which she admitted

to some of the behaviors identified by Ms. Valle and Ms. Coffey

but disputed the conclusion that these behaviors were unusual.

A. Dr. Harmon's evaluation - January 1999

29. At the request of the School Board's Office of

Professional Standards, Larry Harmon, who is a licensed clinical

psychologist, performed a fitness-for-duty evaluation of

Ms. Weinstein on January 28, 1999. In evaluating Ms. Weinstein,

Dr. Harmon c onducted a clinical interview and a mental status

examination, administered several psychological tests, consulted

with other mental health professionals, and reviewed materials

provided to him by the School Board.

30. Dr. Harmon issued a report dated Mar ch 10, 1999, in

which he deferred his diagnosis with respect to Axis I "Clinical

Disorders and Conditions." 5/ He diagnosed Ms. Weinstein with

"Personality Disorder, Not Otherwise Specified" with respect to

Axis II "Personality Disorders," 6/ commenting that she

exhibited moderate to severe patterns of defensiveness, denial,

projection, blame, rationalization, distorted thinking,

suspiciousness, selective listening, inability to process and

accept feedback, poor judgement, and lack of insight.

Dr. Harm on deferred his diagnosis with respect to Axis III

"Physical Disorders and Conditions" to her physician.

31. Dr. Harmon concluded that Ms. Weinstein was not fit

for duty as an elementary school teacher. This conclusion was

based on his assessment that

[h]er impaired interpersonal behavior and

unacceptable work performance in Preparation

and Planning, Classroom Management,

Techniques of Instruction, and Teacher-

Student Relationships is likely to continue

and be considered below acceptable

standards. Based on this assessment, there

is insufficient supporting information to

clear her to return to work. . . .

Dr. Harmon's assessment that her interpersonal behavior was

impaired was based on his observations that Ms. Weinstein was

extremely defensive and almost in a state of denial that there

were any problems with her interactions and performance; that

she had difficulty processing information conveyed to her during

the clinical interview and mental status examination; that her

judgment was impaired and her problem-solving ability reduced;

and that she had a low level of insight into the effect of her

behavior on others. Dr. Harmon found that Ms. Weinstein

generally had serious difficulties with job tasks requiring

interpersonal interactions and stated that

individuals with her [Ms. Weinstein's] level

of defensiveness, distorted thinking,

suspiciousness, denial, selective listening,

inability to engage feedback, poor

judgement, and lack of insight are likely to

evidence significant work difficulties,

especially if she is under stress. . . .

[T]here appears to be a probability of

significant risk that her inadequate

interpersonal skills and inability to

benefit from feedback will adversely affect

her work performance . . . .

32. Among other things, Dr. Harmon r ecommended in his

report that Ms. Weinstein be placed on medical leave for at

least one month to allow her to receive intensive mental health

treatment to help her improve her interpersonal skills and work

performance and that she participate in psychotherapy sessions

and follow the recommendations of her psychotherapist.

33. Another Conference-for-the Record was held in the

Office of Professional Standards on March 17, 1999, for the

purpose of discussing Ms. Weinstein's medical fitness to perform

her assigned duties. At the time, Ms. Weinstein was temporarily

assigned to the Region VI Office, where she had been placed in

early February 1999. Dr. Harmon's report was reviewed at the

conference with Ms. Weinstein and the union representative, and

the recommendations in his report were accepted by the School

Board as conditions for Ms. Weinstein's continued employment as

follows:

Obtain medical clearance from the Board

approved evaluator to return to work within

29 working days of this conference or

implement procedures for Board approved

medical leave.

Participate in psychotherapeutic sessions on

a regular basis to be monitored by personnel

from the District's support agency. Follow

all recommendations of the health care

professionals.

Sign a limited Release and Exchange of

Information for all of your mental health

professionals which restricts the release

and exchange of information to those

symptoms, behavioral patterns, and treatment

compliance issues directly relevant to your

fitness for duty determination.

Upon the recommendation of the District's

support agency, which will be based upon

discussions with your treating mental health

professionals, a re-evaluation will be

scheduled for you with Dr. Harmon.

Ms. Weinstein was advised that, if she did not c omply with

Dr. Harmon's recommendations, the School Board would be

compelled to take disciplinary measures against her including

suspension, demotion, or dismissal.

34. In the School Board's opinion, Ms. Weinstein was not

ready to assume her duties after 30 days, and she subsequently

took School Board-approved medical leave through the end of the

1998-1999 school year.

B. Dr. Feazell's evaluation - March 1999

35. After the School Board received Dr. Harmon's

evaluation report, Ms. Weinstein sought a secon d opinion on her

fitness to carry out her duties as a second grade teacher with

the Miami-Dade County school system. David A. Feazell, a

licensed psychologist, conducted a psychological evaluation of

Ms. Weinstein on March 22 and 26, 1999, and prepared a report

summarizing his findings. Dr. Feazell spent approximately two

hours with Ms. Weinstein in a clinical interview and another two

hours administering psychological tests, which included

personality and intelligence tests. Ms. Weinstein provided

Dr. F eazell a copy of Dr. Harmon's report; he did not have

access to the information provided to Dr. Harmon by the School

Board, although he had access to the summary of the information

contained in Dr. Harmon's report.

36. Dr. Feazell noted in his evaluation report that,

during the clinical interview, Ms. Weinstein's account of her

employment situation was relevant and detailed and consisted of

explanations for her behavior and rebuttal of the complaints

made about her. Ms. Weinstein believed that she had mad e an

unduly negative impression on Dr. Harmon because she was ill at

ease and defensive in answering his questions.

37. The psychological tests given by Dr. Feazell revealed

that

Ms. Weinstein's MMPI-2 [Minnesota Multiphasic

Personality Inventory-2] profile is defensive, going

beyond that which is commonly seen in fitness for duty

evaluations. She denies emotional discomfort and

vulnerability, as well as common place human faults

and frailties. She presents an unusually positive

self-image, describes herself as self-controlled and

quite socially responsible, and reports unusually low

levels of depression or anxiety. In MMPI-2 item

responses, she admits minimal social anxiety and

characterizes herself as very outgoing, despite

describing herself in the interview as shy.

Individuals with Ms. Weinstein's MMPI-2 and

Rorschach profiles are typically inclined to

deny problems and not to have a high level

of introspection or insight into their own

feelings. They can be simplistic or

inflexible into [sic] their approach to

problems and tend to see things too much in

terms of how others do not understand them

or treat them unfairly. Ms. Weinstein

actually shows several signs of a particular

need for the approval and affection of

others, so that she may find situations

quite disconcerting in which others

evaluate, criticize, or take a demanding,

skeptical view of her.

In terms of judgment, Ms. Weinstein is

capable of thoughtful, perceptive analysis

of situations. However, she also appears

likely to overlook or misinterpret important

details. Her judgment can be inconsistent,

especially under conditions of emotional

stress. She seems to react strongly to

emotional stimuli. She could benefit from

the support or guidance of others in

learning to stop and to look at a situation

from other points of view before she draws

unwarranted or inaccurate conclusions. It

is noted that testing shows no bizarre

thinking or major distortion of judgment.

38. Based on his clinical interview and testing of

Ms. Weinstein, Dr. Fe azell diagnosed her with an Axis I clinical

diagnosis of "Adjustment Disorder with Mixed Disturbance of

Emotions and Conduct in the face of occupational and personal

stress." Dr. Feazell did not make an Axis II diagnosis, noting

that "[a]lthough personality patterns predispose her to respond

with some defensive inflexibility to certain interpersonal

stresses, there may not be sufficient evidence of a formal

personality disorder." Dr. Feazell did note, however, that, at

the time of his evaluation, Ms. Wein stein was inclined to

overreact to stress and to misunderstand things and form

incomplete conclusions when she was under stress.

39. Dr. Feazell finally observed that Ms. Weinstein

needs continuing psychotherapy to develop

better ways to recognize and deal with

uncomfortable feelings, to learn better

skills for hearing and taking in feedback

and information without over-reacting and

selectively misunderstanding it, and to

learn better awareness of how her won style

of judgment and interaction can hinder her

problem solving under pressure.

In Dr. Feazell's opinion, Ms. Weinstein was fit for duty at the

time he evaluated her in March 1999 "as long as she has the

support of treatment while working out her job issues with her

principal. It is recommended that Ms. Weinstein return to work

with continuing treatment." According to Dr. Feazell,

Ms. Weinstein's prognosis is fairly good if she continues in

treatment.

C. Dr. Gibb's evaluation - August 1999

40. Ms. Weinstein was referred by the School Board for a

follow-up fitness-for-duty evaluation, which was performed by

Charles C. Gibbs on August 13, 1999. Dr. Gibbs conducted a

clinical interview with Ms. Weinstein, administered several

psychological tests, reviewed records provided by the School

Board, and reviewed the evaluations of Ms. Weinstein performed

by Dr. Harmon, Dr. Feazell, and Dr. Maurer, a psychologist who

evaluated Ms. Weinstein at her request in June and July 1999.

Dr. Gibbs tried to contact Ms. Weinstein's psychotherapist,

Tyrone Lewis, but Mr. Lewis did not return several telephone

calls.

41. In Dr. Gibbs' opinion, Ms. Weinstein's most likely

diagnosis would be an Axis I clinical disorder, such as

depression, anxiety, or an adjustment disorder.

42. Dr. Gibbs concluded that Ms. Weinstein was n ot fit to

return to her job duties as an elementary school teacher as of

August 1999, observing in the report of his psychological

evaluation that

[c]urrent test results and clinical data

indicate that Ms. Weinstein is excessively

defensive, guarded, substitutes fantasy for

reality in stressful situations and she is

plagued with poor judgment given her

tendency to make decisions based on

inadequate information. Furthermore she is

not introspective and lacks insight into her

behavior. As such she tends to project

blame onto others and minimize the effects

of her behavior on those in her environment.

The aforementioned summary of the data in my

professional opinion would make it difficult

for Ms. Weinstein to counsel students when

adjustment and/or academic problems arise.

Further concern is raised in that she tends

to make poor decisions based on inadequate

information. Working with children requires

a great deal of patience and as noted by

results from Dr. Maurer with which I concur

she is in a constant state of stimulus

overload. Thus such typical stressors such

as managing classroom rules and behavior of

students will likely result in Ms. Weinstein

becoming overwhelmed. Additionally, her

unconventional and egocentric style will not

allow her to meet the changing and

challenging emotional needs of elementary

children. I am further concerned that her

defensiveness will prevent her from

benefiting from constractive [sic] criticism

which will impair her participating in

professional meetings and being able to put

into action new information obtained from

conferences and inservice classes.

Dr. Gibbs noted in his report that Dr. Feazell and Dr. Maurer

had both concluded that Ms. Weinstein was fit for duty but that

they had not reviewed the materials he received from the School

Board.

43. Dr. Gibbs also was concerned that Ms. Weinstein had

some mild organic impairment, and he recommended that she have a

full neuropsychological evaluation. He further recommended that

Ms. Weinstein continue in therapy for at least three months

before having another evaluation of her fitness for duty and

that, if she were at some point allowed to resume her duties as

an elementary school teacher, she "team teach with another

professional for 3 months prior to teaching on her own."

D. Ms. Weinstein's psychotherapy treatment

44. Ms. Weinstein has been in treatment with Tyrone Lewis,

a psychotherapist, since January 1999. Mr. Lewis sees

Ms. Weinstein once a week and sometimes once every two weeks; he

engages in what he describes as "supportive psychotherapy" with

Ms. Weinstein, which is designed to provide her with insight

into her current situation and to help relieve her depression

and anxiety. Currently, he is working with Ms. Weinstein to

help her deal with the uncertainty about her job and the

possibility that she will not work as a teacher. At the time of

the hearing, Mr. Lewis was of the opinion that Ms. Weinstein was

much improved, specifically with respect to her cognitive

skills, her depression, her anxiety, and her awareness of her

current life situation.

Final Conference-for-the Record

45. A Conference-for-the-Record was held at the Office of

Professional Standards on October 13, 1999, to review

Ms. Weinstein's performance assessment and her medical fitness

to perform assigned duties. Ms. Weinstein had been working in

her alternate assignment in the Region VI Office since the

beginning of the 1999-2000 school year.

46. With respect to Ms. Weinstein's performance

assessment, the results of the observations done by Ms. Valle

and Ms. Coffey in September and November 1998 and in

January 1999 were reviewed, and it was noted that her 1998-1999

TADS Annual Evaluation was unacceptable. Ms. Weinstein was

advised that her teaching performance was not acceptable and

that she had not remediated the cited deficiencies.

47. With respect to Ms. Weinstein's medical fitness to

perform her duties, the report of Dr. Gibbs was reviewed with

Ms. Weinstein and her union representative. The School Board

personnel acknowledged that Dr. F eazell and Dr. Maurer both

concluded that Ms. Weinstein was able to return to work, while

Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein was not

able to return to work. The School Board accepted the

assessment of Dr. Gibbs.

48. Ms. Weinstein reque sted that she be evaluated by a

fifth doctor, as a "tie breaker"; this request was denied, as

were Ms. Weinstein's requests that she be transferred from Miami

Heights Elementary and that the School Board authorize

additional leave to allow time for her to have the neurological

examination recommended by Dr. Gibbs. Ms. Weinstein was advised

that she must either resign her job or retire because she had

been unable to obtain medical clearance to return to her

teaching duties and was not eligible for additional leave.

Ms. Weinstein did not choose to resign or retire by the

October 20, 1999, deadline, and the School Board suspended her

and recommended her dismissal from employment at its

November 17, 1999, meeting.

Summary

49. The evidence presented by the School Board is

sufficient to establish with the requisite degree of certainty

that Ms. Weinstein is incompetent as a teacher because she

failed to communicate with or relate to her students to such a

degree that the students were denied a minimum educational

experience. Based on the formal and informal observations of

Ms. Valle and Ms. Coffey during the fall of 1998 and in

January 1999, Ms. Weinstein exercised virtually no control over

the students in her classroom and either indiscriminately

reprimanded the students or ignored their inappropriate

behavior. Ms. Weinstein did not present her lessons in a

coherent fashion, did not respond to students who were either

confused or wanted to participate in the class, and was

seemingly indifferent to whether the students learned in her

classroom. No improvement of Ms. Weinstein's classroom

performance was noted by Ms. Valle in her formal observation in

January 1999 even though Ms. Weinstein had completed the

activities prescribed by Ms. Valle and Ms. Coffey with r espect

to the September and November 1999 observations. The School

Board has shown by the greater weight of the persuasive evidence

that Ms. Weinstein is unable to perform her responsibilities as

an elementary school teacher as a result of inefficiency in the

classroom.

50. The evidence presented by the School Board is

sufficient to establish with the requisite degree of certainty

that Ms. Weinstein is incompetent as a teacher because she is

not emotionally stable. Dr. Harmon, Dr. Gibbs, and Dr. Feazell

reached virtually the same conclusions regarding Ms. Weinstein's

psychological profile and personality traits. All three

psychologists found that Ms. Weinstein is extremely defensive,

shows little insight into her own behavior, is unable to accept

and benefit from feedback, makes judgments based on incomplete

or incorrect information, and processes information poorly when

she is in a stressful situation. On the basis of their

assessments, Dr. Harmon and Dr. Gibbs concluded that

Ms. Weinstein is unfit to c arry out the duties as a teacher of

elementary school children; Dr. Feazell concluded that

Ms. Weinstein was fit to return to her teaching duties as of

July 1999, as long as she continued in treatment to resolve the

issues he identified in his evaluation report. The

psychotherapy treatment Ms. Weinstein is receiving is not,

however, focused on developing her ability to interact with

others, to process and benefit from feedback, or to improve her

judgment and ability to react properly in stressful situations,

and Mr. Lewis supported his opinion that Ms. Weinstein was fit

for duty as an elementary school teacher with nothing more than

the observation that she was "much improved." The School Board

has shown by the greater weight of the persuasive evidence that

Ms. Weinstein is not fit to discharge her duties as a teacher at

Miami Heights Elementary as a result of emotional instability.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (1999).

52. Because this case is a proceeding to terminate

Ms. Weinstein's employment with the School Board and does not

involve the loss of a license or certification, the School Board

has the burden of proving the allegations in the Notice of

Specific Charges by a preponderance of the 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 County , 569 So. 2d

883 (Fla. 3d DCA 1990).

53. Section 230.23(5), Florida Statutes (1999), provides

that a school board has the power to suspend and dismiss

employees as follows:

(f) Suspension and dismissal and return

to annual status.--Suspend, dismiss, or

return to annual contract members of the

instructional staff and other school

employees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed or returned to

annual contract except as provided in

chapter 231.

54. Ms. Weinstein is a teacher with a continuing contract

with the School Board. Section 231.36, Florida Statutes (1999),

provides in pertinent part:

(1)(a) Each person employed as a member

of the instructional staff in any district

school system shall be properly certificated

pursuant to s. 231.17 or employed pursuant

to s. 231.1725 and shall be entitled to and

shall receive a written contract as

specified in chapter 230. 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.

* * *

(4)(a) An employee who has continuing

contract status prior to July 1, 1984, shall

be entitled to retain such contract and all

rights arising therefrom in accordance with

existing laws, rules of the State Board of

Education, or any laws repealed by this act,

unless the employee voluntarily relinquishes

his or her continuing contract.

* * *

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any principal, who is under continuing

contract may be suspended or dismissed at

any time during the school year; however,

the charges against him or her must be based

on immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education. Whenever such charges

are made against any such employee of the

school board, the school board may suspend

such person without pay; but, if the charges

are not sustained, he or she shall be

immediately reinstated, and his or her back

salary shall be paid. In cases of

suspension by the school board or by the

superintendent, the school board shall

determine upon the evidence submitted

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 membership of

the 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 within

30 days after the decision of the school

board.

55. In the Notice of Specific Charges, the School Board

asserts in Count I that Ms. Weinstein's employment should be

terminated on the grounds of incompetency based on inefficiency,

as set forth in Rule 6B-4.009(1)(a)(1) and (2), Florida

Administrative Code. The School Board asserts in Count II of

the Notice of Specific Charges that Ms. Weinstein's employment

should be terminated on the grounds of incompetency based on

incapacity, as set forth in Rule 6B-4.009(1)(b)(1), Florida

Administrative Code.

56. Rule 6B-4.009, Florida Administrative Code, provides

in pertinent part as follows:

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; . . . .

(b) Incapacity: (1) lack of emotional

stability; . . . .

57. Section 231.09, Florida Statutes (1999), provides:

The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state and

local achievement requirements, and to

master the skills required to graduate from

high school prepared for postsecondary

education and work. This duty applies to

instructional personnel whether they teach

or function in a support role. Members of

the instructional staff of the public

schools shall perform duties prescribed by

rules of the school board. Such rules shall

include, but not be limited to, rules

relating to a teacher's duty to help

students master challenging standards and

meet all state and local requirements for

achievement; teaching efficiently and

faithfully, using prescribed materials and

methods, including technology-based

instruction; recordkeeping; and fulfilling

the terms of any contract, unless released

from the contract by the school board.

58. Based on the findings of fact herein, the School Board

has proven by a preponderance of the evidence that Ms. Weinstein

is incompetent as a teacher on the grounds of inefficiency. The

School Board did not satisfy its burden of proof by proving that

Ms. Weinstein repeatedly failed to perform all of the duties

assigned by Section 231.09, Florida Statutes (1999), or

contained in School Board rules. It did, however, satisfy its

burden of proof with respect to Ms. Weinstein's incompetency by

proving that Ms. Weinstein failed to provide her students with

the minimum educational experience to which they were entitled

because of her repeated failure to communicate with or relate to

the students.

59. Based on the findings of fact herein, the School Board

has proven by a preponderance of the evidence that Ms. Weinstein

is incompetent as a teacher on the grounds of incapacity. The

School Board has satisfied its burden of proof with respect to

Ms. Weinstein's incompetence by proving that Ms. Weinstein is

emotionally unstable and unable to carry out her duties.

60. Because it has proven Ms. Weinstein's incompetence,

the School Board may terminate her employment pursuant to

Section 231.3 6(4)(c), Florida Statutes (1999).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Miami-Dade

County, Florida, enter a final order sustaining the suspension

without pay of Yvonne M. Weinstein and dismissing her as an

employee of the School Board of Miami-Dade County, Florida, for

incompetency.

DONE AND ENTERED this 11th day of September, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 2000.

ENDNOTES

1 / The assistant principal of South Miami Heights Elementary

School and the assistant principal of Miami Heights Elementary

School spoke with students sitting near the child, and none

remembered Ms. Weinstein making the comment. There is nothing

in the record indicating that School Board personnel further

investigated the incident.

2 / The Employee Assistance Program provides counseling and other

help to teachers who are having difficulties. The program is

entirely voluntary.

3 / The 1978-1979 school year was the first year the Miami- Dade

County school system used an evaluation form virtually identical

to the one currently in use.

4 / TADS is the instrument used by the School Board to evaluate

teachers' classroom performance.

5 / Pursuant to the American Psychological Association

guidelines, Axis I diagnoses identify clinical disorders that

are the cause of the current, acute illness and that are

transient and usually resolved with treatment.

6 / Axis II diagnoses identify personality disorders that are

part of the personality structure and that, while not transient,

can usually be resolved with lengthy and intensive treatment.

COPIES FURNISHED:

Madelyn P. Schere, Esquire

School Board of Miami- Dade County

1450 Northeast Avenue, Suite 400

Miami, Florida 33132

G. Ware Cornell, Jr., Esquire

Post Office Box 14633

Fort Lauderdale, Florida 33302

Roger C. Cuevas, Superintendent

School Board of Miami- Dade County

1450 Northeast Second Avenue

Room 912

Miami, Florida 33132-1308

Honorable Tom Gallagher

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.