This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2223

Gloria Palmer,

Relator,

vs.

Intermediate School District No. 917, Rosemount, Minnesota,

Respondent.

Filed May 20, 1997

Affirmed

Peterson, Judge

Intermediate School District No. 917 School Board

Roger A. Peterson, Scott A. Higbee, Peterson, Engberg & Peterson, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for Relator)

Patrick J. Flynn, Marie C. Skinner, Knutson, Flynn, Deans & Olsen, 1900 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Gloria Palmer argues that respondent's decision to discharge her immediately from her teaching job was arbitrary, capricious, and unsupported by substantial evidence. Palmer also argues that she was denied a fair hearing. We affirm.

FACTS

Relator Gloria Palmer worked as a teacher for respondent Intermediate School District No. 917. Palmer suffered an on-the-job injury in 1990 and was permanently, partially disabled. Except for a few months during the 1993-1994 school year, Palmer was unable to work a full day teaching in the classroom after her injury. The district, however, continued to pay Palmer a full-time salary and hired a part-time substitute to cover the hours that Palmer was unable to teach.

In the summer of 1995, the district asked Palmer's doctor about her long-term prognosis and learned that Palmer's ability to work was subject to six permanent restrictions, including a limitation on the number of hours she could teach per day. Before the 1995-1996 school year, the district assigned Palmer to a .75 full-time position and placed her on medical leave for .25 of a full-time position. The district believed that this placement was equivalent to the hours Palmer actually had worked the previous school year.

Palmer objected to her new assignment.[1] The district notified Palmer that she was free to pursue her legal remedies regarding the new assignment but was expected to report to the new position while those remedies were pending. Palmer attended the teacher workshops held the week before school started but called the district on the first day of class to report that she would not be at work that day. Palmer called the district each school day thereafter, except for one, to report her absence and eventually asked the district to retain a long-term substitute.

The district twice notified Palmer that if she did not report to work or provide medical certification for her absence, she would face disciplinary action. In October 1995, Palmer submitted a letter from her doctor stating that to his knowledge, the new position did not meet Palmer's medical restrictions. Palmer also submitted a letter from her psychiatrist stating that the six restrictions were medically necessary. The district notified Palmer that these letters did not constitute proper medical documentation for her absence because they did not certify that she was unable to perform her new assignment. The district again warned Palmer that failure to report to work or to submit medical certification for her absence would result in disciplinary action. Palmer did not respond. In February 1996, the district sent Palmer notice of her proposed immediate discharge.

Palmer requested a hearing, which was held before a hearing officer. The hearing officer determined that the new assignment was consistent with Palmer's medical restrictions, that Palmer knew she was not going to report to the new assignment before school started but did not tell the district until the first day of class, and that Palmer submitted no medical justification for her absence. The officer determined that Palmer's failure to work constituted insubordination, conduct unbecoming a teacher, failure without justifiable cause to teach without first obtaining written release from the School Board, and willful neglect of duty. The officer recommended Palmer's immediate discharge.

The Board reviewed the entire record, concluded that the hearing officer's decision was supported by competent evidence, and adopted that decision as its own. The Board ordered Palmer's immediate discharge.

D E C I S I O N

A school board's decision to terminate a teacher * * * should be set aside only if the decision is fraudulent, arbitrary, unreasonable, not supported by substantial evidence on the record, not within the school board's jurisdiction, or is based on an erroneous theory of law.

Liffrig v. Independent Sch. Dist. No. 442, Oslo, 292 N.W.2d 726, 729 (Minn. 1980). "Substantial evidence is evidence upon which reasonable minds can rely in arriving at a conclusion." Downie v. Independent Sch. Dist. No. 141, 367 N.W.2d 913, 916 (Minn. App. 1985), review denied (Minn. July 26, 1985). In reviewing a school board's decision to terminate a teacher, we are not free to hear the case de novo or to substitute our findings for those of the board. Id.

A school board may discharge a teacher immediately on grounds of insubordination, conduct unbecoming a teacher, failure without justifiable cause to teach without first obtaining a written release from the board, or willful neglect of duty. Minn. Stat. § 125.12, subd. 8(a)-(c), (e) (1994).

Insubordination is a "constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority."

Ray v. Minneapolis Bd. of Educ., Special Sch. Dist. No. 1, 295 Minn. 13, 17, 202 N.W.2d 375, 378 (1972) (quoting Shockley v. Board of Educ., Laurel Special Sch. Dist., 149 A.2d 331, 334 (Del. Super. Ct.), rev'd on other grounds, 155 A.2d 323 (Del. 1959)).

Palmer argues that the order to report to the new assignment was unreasonable because the assignment violated her medical restrictions. Although the October 1995 letter from Palmer's doctor said that to his knowledge, the new assignment did not comport with her medical restrictions, the doctor testified at the hearing that the new assignment was consistent with the restrictions he imposed on Palmer's work and that she was medically able to complete the requirements of the new position. Other evidence showed the new assignment was very similar to the position Palmer had filled the previous year. This evidence adequately supports the Board's conclusion that the new assignment did not violate Palmer's medical restrictions.

Palmer also claims that the order to report to the new assignment was unreasonable, arbitrary, and capricious because the new position was not designed after consultation with her doctor as were all her previous assignments. The district, however, created the new position after receiving the letter from Palmer's doctor listing her permanent medical restrictions, and Palmer's doctor testified that the new assignment comported with those restrictions. Other evidence in the record showed the new assignment was very similar to the position Palmer had held the previous year which had been designed in consultation with her doctor. Given these facts, the order to report to the new position was not unreasonable, arbitrary, or capricious.

Palmer argues that she was not required to report to her new position while her reassignment appeal was pending. But the pendency of a judicial proceeding does not postpone the effective date of a board's order. Minn. Stat. § 125.12, subd. 11 (1994). Instead, if judicial review results in the teacher's reinstatement, the board is required to pay the teacher all compensation withheld as a result of the improper order. Id. Thus, Palmer should have reported to the new assignment while her appeal was pending.

Palmer next claims the record does not show she failed without justifiable cause to teach because she provided medical confirmation of her inability to work. But Palmer did not submit medical documentation for her absence until October 1995 and neither letter stated that she was unable to perform the new assignment. Although the letter from Palmer's doctor said that to his knowledge, the new assignment did not comport with her medical restrictions, the doctor testified at the hearing that the new assignment actually was consistent with those restrictions. Finally, after the district rejected Palmer's medical excuse, she submitted no additional medical documentation as the district had requested. Accordingly, evidence in the record supports the Board's decision that Palmer did not have justifiable cause for her failure to teach.

Palmer argues that the district's failure to accept her medical excuse was arbitrary and capricious in light of its acceptance of a similar medical excuse from another similarly-situated employee. But the record shows the district also rejected the other employee's first medical documentation as insufficient. Unlike Palmer, the other employee then submitted additional documentation from his medical providers, which the district accepted. These facts adequately explain why the district treated the other employee differently than Palmer and show the district's treatment of Palmer was not arbitrary or capricious.

Because the Board's decision that Palmer was subject to immediate discharge for insubordination and failure without justifiable cause to teach was not unreasonable, arbitrary, capricious, or unsupported by substantial evidence, we need not determine whether the Board properly determined that Palmer also was subject to immediate discharge under the other grounds listed in Minn. Stat. § 125.12, subd. 8.

Palmer finally argues that the hearing officer's nearly verbatim adoption of the district's proposed findings shows she did not receive a fair hearing. See In re Etienne, 460 N.W.2d 109, 111 (Minn. App. 1990) (termination procedures provided by school board must comport with due process), review denied (Minn. Nov. 7, 1990). But a hearing officer's nearly verbatim adoption of a party's proposed findings alone is not improper if the record supports the findings and shows the officer considered all the issues. Cf. Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987) (district court's almost verbatim adoption of party's proposed findings alone not improper if record supports findings and shows court considered all issues), review denied (Minn. May 5, 1988). Here, as discussed above, the record supports the hearing officer's findings. Further, the hearing officer made four minor changes to the district's proposed findings and added two new findings. These changes show the hearing officer conducted an independent review of the record and considered all the issues. Accordingly, the hearing officer's nearly verbatim adoption of the district's proposed findings does not show Palmer was deprived of a fair hearing.

Affirmed.

[ ]1Palmer pursued her objections to this court, which held that the district followed the proper procedures in placing her on medical leave and did not act arbitrarily or unreasonably in reassigning her after it learned of the permanent restriction on her teaching hours. Palmer v. Independent Sch. Dist. No. 916, 547 N.W.2d 899, 906 (Minn. App. 1996), review denied (Minn. July 10, 1996).