APPEAL from the Circuit Court of Washington County; the Hon.
FRANCIS E. MAXWELL, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is an appeal from the decision of the circuit court of Washington County on administrative review upholding the action of the defendant board of education in dismissing the plaintiff as a tenured teacher.
Plaintiff, a tenured teacher employed by the defendant board of education, commenced her teaching duties for the fall term of 1973 on August 23. On September 6 she told the superintendent that she was ill with a kidney problem and that she was going home and going to bed under doctor's orders until she could be hospitalized. She later entered a St. Louis hospital where it was determined that she did not have a left kidney and that her remaining kidney was abscessed.
On September 18, according to its minutes, the Board acted to hire a substitute teacher to teach kindergarten "until Mrs. Gould is able to return."
On September 21 plaintiff returned home from the hospital but was advised by her doctor that she should rest. On September 26 she suggested to the superintendent that she be given a leave of absence. On October 16 the Board granted her leave until January 14, 1974, its minutes stated: "* * * at which time her physical condition will be reviewed and a decision made as to whether or not she is able to return to work on a full-time basis."
On January 2, 1974, the superintendent suggested that she come back and observe in class before returning to teach. She did not come as an observer until January 16, explaining that she had a sinus condition followed by stomach flu. The record shows that the school was closed for three days during this period because of inclement weather and that there was no school on the 14th, the appointed day she was to return.
On January 15 the superintendent called, at which time plaintiff said she could return, but if the Board felt that she was not able she would take leave until February 1. The Board met on January 15 but did not act on her request for leave. She came as an observer on January 16 and on the following days. On January 18 she asked to return to full-time teaching on January 21. The superintendent asked her to wait for a week. She continued to come as an observer and on January 29 asked to take over full-time on February 4. The superintendent was not in favor of this.
On February 6 plaintiff's doctor signed a note saying that it was all right for her to return. On February 14 or 15 she presented this note to the superintendent. He still did not think that she should return or meet with the Board though she asked to meet with the Board.
On February 19 the Board met, considered the doctor's note and expressed the opinion that she "is not physically able to return to work and complete the year." Despite this opinion of the Board, it decided that she should be allowed to return to work. The entry in the Board minutes stated: "However, in view of the vagueness of the law, the absence of applicable Board policy on the subject, it was agreed that Mrs. Gould would be allowed to return to work under specific conditions to be explained to her by the superintendent in a conference and also by letter." Also, at this February 19 meeting, the Board adopted a policy "* * * allowing teachers 3 months to recover from temporary disability after which time all claim to the job including tenure status is lost."
The conditions under which she was permitted to return were that she not be absent, that she perform a full day's work and that she perform extra duties like other teachers. The record shows that after her return to teaching on February 19 she met these conditions fully.
On March 20, 1974, the Board adopted a resolution to discharge the plaintiff. On March 27 the plaintiff appeared before the Board with her father and discussed the Board's resolution. On March 28 notice of charges were delivered to the plaintiff. She requested a bill of particulars, which was supplied on April 8. Following a hearing on August 5, the Board took action dismissing her from her employment. The plaintiff filed a complaint for administrative review on December 19, 1974. The order of the Board dismissing her was upheld by the court.
The Board listed several charges, all but two of which were either not sustained by the evidence, were remedial charges about which she had not been given written warning as required by law or were ruled by the court to be not proper charges. The court upheld the action of the Board on two grounds failure to report to work at the time agreed and her inability to remain alert when she was attending classes as an observer prior to her returning to full-time teaching.
Plaintiff maintains that the Board's action to discharge her was arbitrary and capricious and that by its action on February 19 reinstating her the Board waived any right it might have had to dismiss her for causes which occurred prior to that date. She also asserts that there was misunderstanding about the necessity of her coming as an observer prior to returning to her teaching position, claiming that because of illness she was unable to come during the period between January 2 and January 14. She understood that she must come as an observer after January 14 and before returning to her full-time teaching duties. Whether or not she should have so understood is not clear. However, we do not consider this point crucial in deciding the case.
• 1 In our opinion the real issue in this case is whether or not the Board's action of February 19 reinstating her to her teaching position constituted a waiver of its charge that she did not return to work on the date specified when her leave was granted. The other charge which was upheld, that she dozed in class while attending as an observer, we do not think sufficient to sustain her dismissal. According to the record her dozing in class occurred only while she was attending as an observer following an illness from which she was not fully recovered and in a warm classroom. Furthermore, the record indicates that after returning to her position full-time on February 19 ...