Kleinberg v. Board of Education

751 P.2d 722, 107 N.M. 38
CourtNew Mexico Court of Appeals
DecidedFebruary 4, 1988
DocketNo. 9445
StatusPublished
Cited by11 cases

This text of 751 P.2d 722 (Kleinberg v. Board of Education) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kleinberg v. Board of Education, 751 P.2d 722, 107 N.M. 38 (N.M. Ct. App. 1988).

Opinion

OPINION

GARCIA, Judge.

This is an appeal from the New Mexico State Board of Education’s (state board) decision to affirm the Board of Education of the Albuquerque Public Schools’ (local board) confirmation of a teacher’s discharge. While several issues are raised by the teacher, the principal issue is whether the local board complied with provisions of the New Mexico Open Meetings Act (the Act), NMSA 1978, Section 10-15-1 to -4 (Repl.Pamp.1983 & Repl.Pamp.1987). We affirm.

FACTS

Appellant, Marcia Kleinberg (Kleinberg), a tenured elementary school teacher, was discharged by the Albuquerque Public Schools (APS) for insubordination, conduct unbecoming a teacher, unprofessional conduct, and open defiance of supervisory authority. Kleinberg filed a grievance as a result of her initial suspension but the grievance was denied at the first level. Thereafter, she appealed to the local board. The local board conducted an extensive hearing, lasting in excess of two weeks, on the discharge recommendation. The local board heard thirty hours of testimony from thirteen witnesses including Kleinberg. Counsel for both APS and Kleinberg presented witness testimony and documentary evidence, cross-examined adverse witnesses, and presented argument and legal authority to the local board. While the evidence presented was extensive, detailed and contested, we deem it necessary to summarize salient portions of the hearing officer’s narrative which were supported by substantial evidence on the record as a whole.

Jose Lobato (Lobato) became the principal of Arroyo del Oso Elementary School in 1982. At the time of Lobato’s appointment, Kleinberg was a teacher assigned to Arroyo del Oso and had been teaching for approximately ten years. Prior to Lobato’s assumption of the principalship, Kleinberg had worked in various elementary schools for different principals. Testimony was presented confirming difficulties Kleinberg had had with her prior supervisors including recurring problems with tardiness, complaints of inadequate supervision of her students, and difficulties in getting along with her supervisors.

While Kleinberg’s initial working relationship with Lobato was cordial, Lobato cautioned Kleinberg about her tardiness, her failure to adhere to his directives, and leaving her students unsupervised. Thereafter, the relationship quickly deteriorated. As a result of recurring conflicts and numerous incidents during their first two years of working together at Arroyo del Oso, their working relationship was strained and tense. Kleinberg had insisted that Lobato’s directives be in writing, and consequently, their relationship was characterized by the exchange of numerous formalized memoranda.

Kleinberg’s excessive tardiness, recurring absences from her classroom, inadequate supervision of her students, and inadequate lesson plans, resulted in warnings and reprimands. Kleinberg would become angry at Lobato’s criticisms, and at times would yell or scream at him, sometimes, within the presence or hearing of both students and parents. Testimony was presented that Kleinberg mocked Lobato; and she once told him that he needed speech therapy because his speech mannerisms “tortured” her and she could not cope with the problem. On another occasion, after being called into Lobato’s office because she had failed to sign up for a mandatory computer instruction course, she became so enraged that she screamed at him, stormed out of his office and slammed the door with such force that several pictures were knocked from the office wall. As she walked past Lobato’s secretary, she yelled “I don’t know how you stand working for that man.” Generally, Kleinberg viewed Lobato as being unfair and harassing; Lobato viewed Kleinberg as uncooperative, combative, and unwilling to follow his directives.

The incidents which formed the basis for Kleinberg’s discharge all occurred during the 1985-86 school year, the year she was fired. That school year, all teachers had been instructed by Lobato to enroll in and attend a math conference. All did except for Kleinberg. On the registration deadline, September 13th, Lobato directed that Kleinberg enroll, and although she did, she did not attend the conference.

On September 30th, Lobato observed Kleinberg’s students misbehaving in the cafeteria and leaving the cafeteria unsupervised. Teachers were required to escort and supervise their students to, from and while at lunch. Lobato had previously cautioned Kleinberg about her students’ conduct and her lack of supervision. Later that day, during a classroom observation, Lobato noted that Kleinberg’s classroom was untidy. As a result, Lobato prepared a memorandum to Kleinberg outlining his concerns about student supervision, the cafeteria incident, the classroom appearance, and a problem which occurred a few days before when a substitute teacher utilized Kleinberg’s lesson plans and found them difficult to follow. The memorandum was sent to Kleinberg. On the following day, pursuant to a district mandate to monitor classes and in accordance with Lobato’s daily routine of observing teachers in their class setting, Lobato visited and monitored Kleinberg’s class. Because of the seriousness of the incident that occurred, we quote from the local board’s findings which are supported by substantial evidence on the record as a whole.

On October 2, 1985, Mr. Lobato entered Ms. Kleinberg’s classroom at about 11:15 a.m. to make a normal observation. At the time Mr. Lobato entered the classroom, Ms. Kleinberg was at her desk. She then left her desk to attend to students, and Mr. Lobato moved towards [sic] her desk and sat down to review her lesson plans which were incomplete. Ms. Kleinberg watched Mr. Lobato from her position in the classroom. When Mr. Lobato picked up a pen from Ms. Klein-berg’s desk, she walked up behind him, grabbed her lesson plans and pen from his hands, and demanded that Mr. Lobato leave her classroom. This action was within the sight and hearing of students in the classroom. Ms. Kleinberg then declared to Mr. Lobato that “the purpose of his visit was job harassment and that she “didn’t think that harassing a teacher was part of his job.” Mr. Lobato had said nothing to Ms. Kleinberg at this point, but he declined to leave.
Mr. Lobato then went to the back of the classroom, unrolled some paper toweling from over the sink to use as note paper, borrowed a pen from a student, and sat down. Ms. Kleinberg then went to the back of the room and again, within the hearing of students, asked Mr. Lobato to leave. He declined, directing Ms. Kleinberg to continue with her regular classroom instruction. Then, for a third time, Ms. Kleinberg insisted that Mr. Lobato leave her classroom. At this point, Mr. Lobato moved to the side of Ms. Kleinberg’s desk. Ms. Kleinberg asked Mr. Lobato if he would like to address the students, and he told the students that he was just observing and didn’t have anything to say.
Ms. Kleinberg then suggested to the students that they play a game outside and instructed them to get the kickball equipment. Mr. Lobato, however, requested that the students not go outside and that Ms. Kleinberg continue with her regular classroom instruction. Ms. Kleinberg told the students that they could not go out and play.
Mr. Lobato returned to the back of the room and made some notes on the toweling. Ms.

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Bluebook (online)
751 P.2d 722, 107 N.M. 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinberg-v-board-of-education-nmctapp-1988.