Brawner v. Marietta City Bd. of Educ., A06A2133.

Citation285 Ga. App. 10,646 S.E.2d 89
Decision Date28 March 2007
Docket NumberNo. A06A2133.,A06A2133.
PartiesBRAWNER v. MARIETTA CITY BOARD OF EDUCATION.
CourtUnited States Court of Appeals (Georgia)

Michael E. Kramer, Shalini A. Patel, Kramer & Patel, Atlanta, for appellant.

Clement C. Doyle, Brock & Clay, Marietta, for appellee.

BARNES, Chief Judge.

Dr. Sharon Brawner, a City of Marietta elementary school teacher, was terminated after she attended a pre-planning day at her school while she was on extended long-term disability leave because of treatment and complications from cancer. The Marietta City Board of Education (hereinafter "the Local Board") terminated Brawner's teaching contract on the grounds of insubordination and other "good and sufficient cause." The State Board of Education affirmed the Local Board, and upon Brawner's appeal, the superior court, finding evidence of insubordination, upheld the termination. She filed an application for discretionary review of the trial court's order, which we granted.

On appeal, Brawner argues that there was no evidence supporting the Local Board's finding that she was insubordinate pursuant to OCGA § 20-2-940(a)(2) by attending a pre-planning meeting while on an approved leave of absence granted by the Local Board. She maintains that as there is no evidence that she wilfully denied any request made by the Local Board, the finding of insubordination is illegal and constitutes reversible error. We agree, and reverse.

Brawner began teaching in the City of Marietta school system in the fall of 2000. In March 2001, she was diagnosed with breast cancer but managed to complete her teaching duties for the school year. Due to numerous complications that arose from breast cancer, Brawner obtained leave under the federal Family and Medical Leave Act (FMLA) through March 1, 2004. She later obtained long-term disability benefits retroactive to September 2001. In a letter dated February 2, 2004, Judith Sands, human resources administrator for Marietta City schools, informed Brawner that:

Following an absence for personal illness (childbirth or other serious health condition), the employee must provide Human Resources a fitness-for-duty report completed by an appropriate health care provider prior to being restored to duty. This must state that the employee is able to resume work.

(Emphasis supplied.) Attached to the letter was a form entitled "Medical Certification— Fitness for Duty Report," and the letter referred to board policy "GBRIG." That policy stated in pertinent part that: "Upon the employee's return to work, the school district may require the employee to provide certification by his/her health care provider that the employee is able to resume work." (Emphasis supplied.)

In mid-July 2004, Brawner's medical leave of absence was extended to December 31, 2004. On August 2, 2004, Brawner attended part of the first day of a pre-planning session held at her elementary school, where she signed an attendance roster, attended a staff meeting, and introduced herself to the new principal after the meeting. Brawner left the school at around noon for a doctor's appointment, and afterward returned to school to speak with the principal and to return her classroom keys. Sands sent Brawner another letter dated August 3, 2004, restating the February letter and asking that Brawner "provide the school principal with the Medical Certification—Fitness for Duty form before you return to work." On August 9, 2004, Brawner sent Sands an e-mail informing her that she could not provide the requested information because of her continuing medical problems, that despite the principal's request for her written resignation she was not resigning, and that she was continuing with her disability.

The Local Board sent Brawner a letter and "Notice of Charges" informing her that the Board intended to terminate her teaching contract for the 2004-2005 school year for insubordination because she had returned to work by appearing at the school for part of the pre-planning day without submitting a proper certificate of fitness. The Local Board also notified Brawner that she would be terminated for "good and sufficient cause" because, after reporting for duty at the pre-planning meeting, she was absent from school for the rest of the 2004-2005 school year.

After a hearing, the Local Board terminated Brawner's teaching contract on the grounds of insubordination and good and sufficient cause. The State Board affirmed the Local Board, finding that the question of whether Brawner "returned to work is a question of fact to be determined by the Local Board." The State Board noted:

Although [Brawner] claims that she did not return to work on August 2, 2004, there was evidence that she signed in as present at the preplanning meeting and a request for payment was made. The Local Board, therefore, could find that [Brawner] went to work without presenting a certificate of availability after being directed to provide such a certificate before starting to work. . . .

During the hearing, [Brawner] admitted that she received and understood the directive that she was to supply a certificate of availability before returning to work, but she nevertheless attempted to return to work without providing the certificate. The State Board of Education concludes that there was evidence from which the Local Board could conclude that [Brawner] was insubordinate.

Defining insubordination as the "willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation or order issued by the school board or an administrative superior," the State Board found evidence of insubordination. The State Board, however, reversed the Local Board's finding of "other good and sufficient cause" because it found that the Local Board's policy did not foreclose Brawner from being on leave for more than one year.

Brawner appealed to superior court, and based on the "any evidence" standard of review applicable to the case, the trial court found evidence of insubordination. The trial court noted the following:

On February 2, 2004, a central office administrator directed [Brawner] that she was required to provide a doctor's certificate that she was fit to return to work. [Brawner] admitted that she received and understood this directive. On August 2, 2004, however, there is evidence that [Brawner] returned to work, and signed in as present, without providing such a certificate. There was also evidence that a request for payment was made for the time [Brawner] worked that day. [Brawner] has not asserted that her actions in returning were caused by mere negligence or a legitimate misunderstanding of the directive issued to her.

The trial court concluded that the record contained evidence that Brawner "was insubordinate in returning to work without providing a certificate of fitness for duty, after she was directed to produce such a certificate as a condition of returning to work."

"Since we are called on here to weigh the sufficiency of the evidence, our gauge for doing so is the `any evidence' rule." (Citations omitted.) Terry v. Houston County Bd. of Ed., 178 Ga.App. 296, 297, 342 S.E.2d 774 (1986). OCGA § 20-2-940 is referred to as Georgia's Fair Dismissal Act. See Clinch County Bd. of Ed. v. Hinson, 247 Ga.App. 33, 543 S.E.2d 91 (2000). Subsection (a) sets forth eight grounds upon which the contract of employment of a teacher, principal, or other employee having a contract for a definite term may be terminated by a local board of education. These eight grounds are:

(1) Incompetency; (2) Insubordination; (3) Willful neglect of duties; (4) Immorality; (5) Inciting, encouraging, or counseling students to violate any valid state law, municipal ordinance, or policy or rule of the local board of education; (6) To reduce staff due to loss of students or cancellation of programs; (7) Failure to secure and maintain necessary educational training; or (8) Any other good and sufficient cause.

Brawner contends that no evidence exists to support the Local Board's finding that she was "insubordinate" within the meaning of the statute by voluntarily attending a portion of a pre-planning meeting while on approved leave.

At the termination hearing before the Local Board, the superintendent told the Board that the main two charges against Brawner were (1) "good and sufficient cause" for failing to fulfill her contractual obligation to teach, and (2) insubordination, for returning to work without the required fitness-for-duty report signed by a physician, despite having notice of the rule. The termination hearing focused on the meaning of "work," whether Brawner admitted working, and whether she was paid for a half day of work. The Local Board and Brawner stipulated that she had been issued a paycheck for part of a day's pay and that the check was put into her school mailbox and was never cashed.

Brawner testified that she went to the pre-planning meeting because my classroom had been changed over the summer, and I wanted to make sure that my materials had made the move safely. And also I felt that I needed to go and meet my principal and let her know that I intended to uphold my contract for the year, that even though I couldn't go to work at that moment, that I felt that I would be coming to work very soon.

She also testified that she did not intend to return to teaching after pre-planning because "[m]y doctors would not release me to return to work, but I got so agitated that I wasn't going that they said that they would approve for me to go for one day if I sat down and did very little except listen to my principal and check on my room." She further testified that before going to school for the meeting, she had contacted the Local Board's disability provider, Jefferson Pilot Financial, to make sure that going to work for a day would not jeopardize her disability payments, and was told that it would not.

The Local Board argues that the record contains...

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