Umphries v. Jones, 57833

• Decision Date: 13 February 1991
• Docket Number: No. 57833,57833
• Citation: 804 S.W.2d 38
• Parties: 65 Ed. Law Rep. 1335, 2 A.D. Cases 965, 1 NDLR P 241 Malendia Wade UMPHRIES, Plaintiff-Appellant, v. Dr. Jerome B. JONES and Board of Education of City of St. Louis Public Schools, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 38

804 S.W.2d 38

65 Ed. Law Rep. 1335, 2 A.D. Cases 965,

1 NDLR P 241

Malendia Wade UMPHRIES, Plaintiff-Appellant, v. Dr. Jerome B. JONES and Board of Education of City of St Louis Public Schools, et al., Defendants-Respondents.

No. 57833.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 13, 1991.

L. Richard Brinkman, Jr., Gumersell, Denk & Brinkman, Arnold, for plaintiff-appellant.

Kenneth C. Brostron, Jeffrey J. Lowe, Sandra J. Allen, Lashley & Baer, St. Louis, for defendants-respondents.

SMITH, Presiding Judge.

Appellant teacher appeals from the decision of the trial court upholding the action of the respondent school board approving the suspension and removal of teacher by the Superintendent. We affirm.

Teacher was employed as an instructional coordinator at the King Middle School. She is certified as a social studies teacher for grades 7 through 12. An instructional coordinator is an administrative post. It requires the employee to move throughout the building observing classes and assisting teachers in providing quality education and instruction. King Middle School is a four story building with concrete stairs and floors. It has no elevator.

In June 1986, teacher was struck by a school van and sustained a concussion. Thereafter she began sustaining convulsive seizures--epileptic-like in nature. Initially the seizures were very frequent and severe in nature. Under medication both the severity and the frequency have been reduced, but even with medication teacher continues to experience seizures during which she blacks out and loses control of her body. Several of these attacks occurred while at school. At least one and possibly two occurred when teacher was on the steps. In the one attack clearly occurring on the steps teacher fell down the steps and incurred minor injuries to her face. On some occasions, but not always, the teacher will have a premonition (medically referred to as an "aura") immediately preceding or as an early part of the seizure. When these aurae occur teacher can sit down in a place of safety.

There was no medical dispute that teacher is not seizure-free and there was no prognosis that she would ever be. In the deposition of the school board's medical witness he opined that teacher could work but should not work in an environment where she would have to traverse concrete steps. Teacher's medical expert believed teacher could work with safety to herself and others at her job for the school. That expert was unaware that teacher's job entailed traversing concrete stairs as much as a hundred times a day.

The Superintendent suspended teacher without pay on September 6, 1988 on the basis that her medical condition incapacitates her, making it impossible for her to perform her job with safety to herself and others. Following a hearing the Board found, on April 14, 1989, that continued employment as an instructional coordinator "will result in substantial harm to herself and others." It therefore upheld the suspension, removed her from her position as instructional coordinator and directed that she be reassigned to a comparable non-teaching position at a non-school site. On July 24, 1989, teacher was assigned to the position of City-County Consumer Project Coordinator at a non-school site. At the time of her suspension teacher's salary was $34,900; her new position pays $37,742.

On appeal teacher raises three contentions of error. Initially she contends the Board's finding that her continued employment "will result in substantial harm to herself and others" was unsupported by substantial and competent evidence. Secondly, she contends the trial court erred in not requiring the school board to make reasonable accommodations in light of her physical condition including consideration of reassigning employees. Finally she premises error on the failure of the circuit court to award her back pay since she contends that she was reassigned and not removed pursuant to Sec. 168.221, R.S.Mo.1986. Our scope of review is limited to a determination of whether or not the Board's decision is supported by competent and substantial evidence upon the record as a whole, whether the decision was arbitrary, capricious or unreasonable, or whether the administrative action constituted an abuse of discretion. Gamble v. Hoffman, 732 S.W.2d 890 (Mo.banc 1987) . The parties here have focused entirely on the first standard-competent and substantial evidence.

Sec. 168.221.3 R.S.Mo.1986 provides that a permanent teacher may be removed for a physical impairment which incapacitates the teacher for instructing or associating with children. Neither side questions that if teacher's physical impairment places her in danger of serious injury to herself in the course of doing her job that section would apply and allow removal. There is no doubt that teacher suffers from seizures resulting in blackouts and loss of body control. These seizures are unpredictable and, on occasions at least, unanticipated. There is no question that teacher's employment as an instructional coordinator requires her to traverse concrete stairs on a constant basis daily. While teacher has not been seriously injured as a...