Clarke v. Shoreline School Dist. No. 412, King County
| Decision Date | 12 June 1986 |
| Docket Number | No. 52139-5,52139-5 |
| Citation | 720 P.2d 793,106 Wn.2d 102 |
| Parties | , 57 Fair Empl.Prac.Cas. (BNA) 442, 43 Empl. Prac. Dec. P 37,119, 33 Ed. Law Rep. 556, 1 A.D. Cases 944 Robert B. CLARKE, Appellant, v. SHORELINE SCHOOL DISTRICT NO. 412, KING COUNTY, Washington, Respondent. |
| Court | Washington Supreme Court |
Cogdill, Deno & Millikan, William Cogdill, Kent Millikan, Everett, for appellant.
Keough & Mallett, John Keough, Seattle, for respondent.
Appellant Robert Clarke, a teacher of severely mentally retarded children for respondent Shoreline School District, was discharged from employment after serving a period of probation. Robert Clarke is legally blind and wears bilateral hearing aids for a hearing impairment. Clarke claims he was discharged because of his handicap, in violation of the Law Against Discrimination, RCW 49.60, and, regardless, that the School District failed to comply with the statutory requirements pertaining to teacher probation. In an administrative hearing, the hearing officer found that the District discharged Clarke for sufficient cause, a decision affirmed on appeal by the King County Superior Court. Clarke appealed to the Court of Appeals, which transferred the case to this court pursuant to RAP 4.3. We affirm.
Robert Clarke graduated from the University of Washington in 1949 with a bachelor's degree in physical education, and obtained his teacher's certification the following year. Between 1951 and 1965, he had teaching experience as a substitute teacher for 3 weeks, and as a full-time teacher for 1 year at a now-defunct private school. He has taken approximately six credit hours of continuing education in special education since graduating from college. Otherwise, he has no other special education training or, for that matter, any formal training in any other curricular subject.
Clarke began teaching for the School District in 1965. He taught at the Fircrest School continuously during the next 13 years, except for a 1-year venture in real estate in the 1969-70 school year. During his career with the School District, he taught severely and profoundly handicapped, special education students. The class sizes averaged about 10 students, with each class having one teacher and an average of two instructional assistants.
Since 1960, Clarke has suffered from a degenerative eye disease known as retinitis pigmentosa, which involves the gradual narrowing of his peripheral vision. At the time he was discharged in 1978, his vision had degenerated to the point that he only had a narrow range of vision directly in front of his eyes; even that vision was somewhat clouded. Clarke also suffers from a bilateral hearing loss which he has had since college. This hearing impairment, however, is largely compensated by two hearing aids which enable him to hear normal speech, except at higher frequencies.
Clarke first noticed his vision deficiency about 1970; but it did not become a significant problem until the 1973-74 school year. His loss of eyesight eventually impaired his ability to carry out his teaching duties, particularly in monitoring student location and behavior in the classroom, in seeing responses to verbal commands to the students, in recording information on student behavior, and in preparing for class. These difficulties gradually increased as his peripheral vision decreased during the ensuing 5 years.
Pat Shiveley was designated by the School District to serve as the administrator of the Fircrest program. As the Fircrest administrator, Shiveley was responsible for performing Clarke's statutorily-required observations and evaluations. Clarke's gradual loss of vision and accompanying classroom difficulties were the only concerns noted by Shiveley in the annual evaluations in 1973-74 and 1974-75. Shiveley completed her last, formal end-of-year evaluation of Clarke on May 20, 1976. As a result of Clarke's vision and hearing problems, Shiveley was unable to recommend Clarke's continued classroom assignment at Fircrest.
About the time Shiveley completed her 1975-76 evaluation of Clarke, Clarke attended a conference with James Becker, Director of Pupil Services, and Gerry Alexander of the State Services for the Blind. At that conference, the three men discussed both Clarke's hearing and vision disabilities and his teaching deficiencies. To remedy both the teaching deficiencies and the vision handicap, four possible alternative courses of action were identified. The obligation was on Clarke to select a course of action and notify the School District of that course of action. At no time did Clarke select one of the alternatives set forth at the conference or notify the School District, through Mr. Becker, of his selection.
Because of his vision problems, Clarke requested an intradistrict transfer in December 1975, and again in the summer of 1976. The District refused these requests. A request for an additional aide to assist him in the classroom likewise was refused.
In a letter dated September 20, 1976, William G. Stevenson, Superintendent of Shoreline Public Schools, placed Clarke on probationary status for the 1976-77 school year. The notice of probation specified three areas of professional performance deficits:
1. Failure to adequately handle student discipline and attendant problems of student conduct, and the general safety and welfare of students assigned to the classroom.
2. Deficiency in professional preparation in establishing long and short range lesson plans as required by school district policy and building procedures.
3. Failure to establish educational objectives appropriate for handicapped students with the accompanying need to select and implement teaching methods that would meet the educational abilities of handicapped students.
The Superintendent's notice of probation also proposed a plan to remediate the teaching deficiencies.
Clarke subsequently filed a complaint with the Washington State Human Rights Commission, alleging that the School District was not making an effort to reasonably accommodate his handicaps as required by state law. As a result of that complaint, the Commission initiated an investigation which resulted in a Pre-Determination Settlement Agreement between the School District, Clarke and the Human Rights Commission on February 7, 1977.
That agreement provided, in part, that (1) Clarke would be able to take a disability leave of absence beginning in February 1977, for the purpose of "rehabilitation" and "retraining"; 1 (2) all data regarding the 1976-77 probationary period would be destroyed; (3) when he returned to teach the following September, the School District would reasonably accommodate any remaining limitation of function which was not overcome through the rehabilitation and training; (4) Clarke would return to teaching in September 1977, on probation, and (5) if he failed his probation, the School District would make reasonable effort to transfer Clarke to another position in the School District on the same basis as it would other teachers who had failed probation.
Clarke did enroll in general rehabilitation programs offered by the State Services for the Blind during his leave of absence. During that time, he also observed other blind teachers' techniques. Clarke had planned to enroll in a training course for blind teachers, but that course was not offered during his leave of absence. In short, although he received some rehabilitation, Clarke obtained little or no retraining to allow him to more effectively serve as a blind teacher of the severely retarded.
Clarke returned to his teaching duties at the beginning of the 1977-78 school year on probation, and Shiveley was assigned to observe and evaluate his progress during the probationary period. Initially, Clarke was assigned a class of 9 students, 4 of whom were blind and 4 of whom were serious behavior problem students. Clarke protested to Shiveley during that school year that the number of behavior problem students, together with the blind students, presented substantial additional problems for him as a result of his handicaps.
As found by the hearing officer, however, the classroom to which Clarke returned for the 1977-78 school year contained children who were specifically chosen with both his teaching deficiencies and sensory handicaps in mind. In addition, specially chosen instructional assistants were assigned to Clarke. Clarke also was given special consideration in the assignment of the classroom in which his students were to be taught.
Clarke requested further accommodations from the School District, including an additional instructional assistant, and either fewer students or fewer behavior problem students. The District denied these requests and later added two more behavior problem students to Clarke's class over his protests and protests from his two instructional assistants.
In April 1978, Clarke again wrote to the District Superintendent requesting either an additional instructional assistant and fewer behavior problem students, or a transfer to some other position for which he was more suited. Apparently it is the District's policy not to transfer persons who are currently in a probationary status with the District. On both occasions when appellant made a formal written request for transfer, he was on probation with the School District.
On May 11, 1978, the Superintendent notified Clarke that the District was discharging him from his employment as of May 15, 1978, and also that it did not intend to renew his contract for the following school year. According to the Superintendent, he had determined that "sufficient cause" existed for discharge or nonrenewal of Clarke's contract for the causes listed as follows:
1. You have failed to adequately handle student discipline and attendant problems of student conduct and the general safety and welfare of students assigned to your classroom.
2. You have been deficient in professional...
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