STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF HIGHLANDS COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 96-3475

)

MARY JANE NILSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge,

Division of Administrative Hearings (Division), held a formal hearing in this matter on April 4, 1997, in Sebring, Florida.

APPEARANCES

For Petitioners: James F. McCollum, Esquire

Clay Oberhausen, Esquire

129 South Commerce Avenue Sebring, Florida 33870

For Respondent: Mark Herdman, Esquire

2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?

PRELIMINARY STATEMENT

By letter dated June 11, 1996, Richard A. Farmer, Superintendent of the Highlands County Schools (Superintendent Farmer), advised Respondent Mary Jane Nilsen that he intended to recommend to the Board that Respondent be suspended, without

pay, for 5 days. Subsequently, Respondent requested a formal administrative hearing. By Notice dated July l, 1996, the matter was referred to the Division for the assignment of a Hearing Officer (now Administrative Law Judge) and for the conduct of a hearing.

At the hearing, the Board presented the testimony of Roy R. Wright, III, Johnnie Mae Pringle, Karla Barfield, Brenda Sullivan, Shirley Higgins, Richard Farmer, Calvin Smith, Carlene Varnes, Shannon Weaver Bertram, and John Martin. The Board's Exhibits 3, 5, 6, 7, 24, 25, 26, 27, 29 through 48, 57, 58, 59,

70, 71, 72 and 73 were received as evidence. After the Board's

Exhibits 1, 2, 4, 8 through 23, 28, 49 through 56, and 60 through 65 were rejected, the Board made a proffer of those exhibits. After further consideration, those exhibits are rejected. The record does not reflect that the Board offered exhibits numbered 66 through 69. Respondent testified on her own behalf and presented the testimony of Dolores Ribitzki and Jackeline Silvestre. The Respondent did not offer any documentary evidence.

A transcript of this proceeding was filed with the Division on May 16, 1997. The Respondent timely filed her Proposed Findings of Fact and Conclusions of Law under the time-frame set out by the undersigned at the close of the hearing. Although the Board failed to timely file its Proposed Findings of Fact and Conclusions of Law, these were reviewed and considered.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers.

   
   

2. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more

   than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent.

   
   

3. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent."

   
   

4. By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent.

   
   

5. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides:

   
   

   I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31.

   
   

   * * *

   
   

   Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs.

   Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. .

   . .

   
   

   Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay.

   
   

   * * *

   
   

   Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished).

   
   

   A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation.

   
   

6. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows:

   
   

   This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct.

   
   

   Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees.

   
   

   The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals.

   
   

   In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and

   warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action.

   
   

   You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished).

   
   

   It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning.

   
   

7. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994.

   
   

8. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996.

   
   

9. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park.

   
   

10. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle.

    
    

11. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses.

    
    

12. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident.

13. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. .

    
    

14. Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move.

    
    

15. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus.

    
    

16. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation.

    
    

17. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

19. The Agreement Between the Highlands County School Board and the Highlands County Educational Support Personnel Association, 1995/96 - 1997/98 (Agreement) provides as follows:

    
    

    1. Employee Rights

       
       

       1. Rights, Responsibilities, and Protection in Representation

          
          

          (d) It shall be the Board's usual practice to follow a course of progressive discipline except in cases requiring immediate action, as determined by the administrator/supervisor. Progressive discipline shall mean verbal warning; written letter following a conference; suspension without pay for up to five (5) days; termination.

          
          

20. Since the Respondent chose not to contest the October 21, 1994, verbal warning and the verbal warning and written reprimand of February 28, 1996, the truth of allegations is not at issue in this proceeding. The issue to be resolved is this: Did the Board follow the progressive discipline as outlined in the Agreement, and, if so, is there justification for imposing a 5-day suspension without pay?

    
    

21. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which is allegations of misconduct are based. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977).

The Board has the burden of proving such allegations by a preponderance of evidence. The Board has met its burden in this regard. Clearly, the Board followed the procedure outlined in the Agreement for progressive discipline. Likewise, it is clear that Respondent could have alleviated the problem immediately had she chosen to do so. By choosing to act in the way she did, Respondent violated Board policy and created a hazardous condition for those buses that had to park outside the bus compound on May 31, 1996. The Board has shown justification for the 5-day suspension without pay.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

Recommended that Respondent be suspended without pay for a period of 5 days.

DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997.

COPIES FURNISHED:

Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098

James F. McCollum, Esquire Clay Oberhausen, Esquire

129 South Commerce Avenue Sebring, Florida 33870

Mark Herdman, Esquire

34650 U.S. Highway 19 North

Suite 308

Palm Harbor, Florida 34684

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003475

Orders for Case No: 96-003475