STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-5697

)

TUSH MARKU, )

)

Respondent, )

)

RECOMMENDED ORDER

An administrative hearing was conducted on April 18, 1997, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Ned Julian, Esquire

Seminole County Public Schools Educational Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Thomas L. Johnson, Esquire

Law Offices of John Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.

PRELIMINARY STATEMENT

By letter dated September 25, 1996, Petitioner notified Respondent of Petitioner's intent to terminate Respondent from his employment with the Seminole County School Board (the

"Board"). Respondent timely requested an administrative hearing. Petitioner referred the matter to the Division of Administrative Hearings to conduct the hearing.

At the hearing, Petitioner presented the testimony of six witnesses and submitted eight exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of two witnesses, and submitted 10 exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on May 10, 1997. The parties timely filed their proposed recommended orders ("PROs") on June 17, 1997.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause.

2. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor.

3. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus.

4. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table.

5. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus.

6. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass."

7. In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day

   suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension.

8. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again.

9. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job.

10. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus.

11. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart.

12. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class.

13. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart.

14. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart.

15. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with

    the names of the disruptive students or assisted Respondent in obtaining their names.

16. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students.

17. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp.

18. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent.

19. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class.

20. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements.

21. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours.

    Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor.

22. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students.

23. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school.

24. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school.

25. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy.

26. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy.

27. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned

    to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy.

28. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students.

29. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about."

30. Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face.

31. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways."

32. Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass."

33. Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy

    did not provoke Respondent prior to his quoted statement in the preceding paragraph.

34. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot."

35. Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.

    CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes (1995). 2/ The parties were duly noticed for the hearing.

37. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment. McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); Allen vs. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo vs. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

38. The collective bargaining agreement provides in relevant part that Respondent ". . . may only be terminated for just cause. . . ." CBA, Article IX, Section 3.B. Respondent may

    be discharged ". . . for reasons including, but not limited to

    . . . insubordination." CBA, Article IX, Section 4.C.3. 1. Insubordination

39. The collective bargaining agreement does not define the term "just cause." However, the collective bargaining expressly makes insubordination just cause for termination. Id.

40. The collective bargaining agreement defines insubordination as the refusal ". . . to follow a proper directive, order, or assignment from a supervisor." Id. Respondent committed insubordination within the meaning of the collective bargaining agreement.

41. In 1995, Petitioner issued a proper directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Respondent would be terminated if he repeated such conduct.

42. Respondent refused to follow a proper directive. On September 18, 1996, Respondent engaged in conduct prohibited under the directive. On September 18, 1996, and February 1, 1995, Respondent engaged in threatening language and conduct toward his supervisor, used abusive and profane language, and did so on the job and in the presence of other public employees. In both instances, Respondent was out of control and yelling. 3/

43. Respondent is an educational support employee within the meaning of Section 231.3605 (a "non-instructional employee"). Even if Respondent had not refused to follow a proper directive

    or if insubordination were not defined in the collective bargaining agreement, Respondent was insubordinate.

44. Insubordination for a non-instructional employee need not satisfy the elements of gross insubordination set forth in Florida Administrative Code Rule 6B-4.009(4) 4/ for instructional employees. Muldrow vs. Board of Public Instruction of Duval County, Florida, 189 So. 2d 414 (Fla. 1st DCA 1966). A non-instructional employee is insubordinate if his or her conduct satisfies the judicial test for insubordination.

45. Insubordination has been judicially held to occur if a non-instructional employee violates a previously-given order. Johnson vs. School Board of Dade County, Florida, 578 So. 2d 387 (Fla. 3rd DCA 1991). Alternatively, a single act of disrespect for the authority of supervisors or managerial employees employed by a school board may constitute insubordination. See, Ford vs. Southeast Atlantic Corporation, 588 So. 2d 1039, 1041 (Fla. 1st DCA 1991)(holding that a single act of direct violation of company policy can be misconduct); Jacker vs. School Board of Dade County, Florida, 426 So. 2d 1149, 1151 (Fla. 3rd DCA 1983)(holding that a single incident of disparaging racial remarks toward a supervisor can be misconduct).

46. The conduct of Respondent on September 18, 1996, satisfied the judicial definition of insubordination by a non- instructional employee. It was either a violation of a previously given order or a single act of disrespect for the

authority of a supervisor, or both. Ford, 588 So. 2d at 1041; Jacker, 426 So. 2d at 1151; Johnson, 578 So. 2d at 387.

1. Conduct Unbecoming An Employee

   1. Conduct unbecoming an employee constitutes grounds for terminating Respondent's employment. Seminole County Board of County Commissioners vs. Long, 422 So. 2d 938 (Fla. 5th DCA 1982). Respondent's threatening comments and profane comments toward Mr. Murphy on September 18, 1996, constituted conduct unbecoming an employee. It was not an isolated incident of poor judgment on the part of Respondent. It took place on the job, in the presence of other school board employees, and in the presence of students. It evidenced a lack of respect for a school administrator. It was not the result of provocation. Respondent had prior notice that such conduct was unacceptable. See, Suluki vs. Unemployment Appeals Commission, 644 So. 2d 552 (Fla. 5th DCA 1994)(holding that profanity toward a supervisor is misconduct); Stahl vs. Florida Unemployment Appeals Commission, 502 So. 2d 78 (Fla. 3rd DCA 1987)(holding that shouting obscenities at a supervisor in the presence of other employees is misconduct); Hines vs. Department of Labor and Employment Security, 455 So. 2d 1104 (Fla. 3rd DCA 1984)(holding that belligerent conduct toward a supervisor is misconduct).

   2. It is unnecessary to address Respondent's allegations:

      that Petitioner failed to provide adequate support for Respondent, in the form of assistance in preparing a seating

      chart for Respondent's bus or in the form of discipline of the students on Respondent's bus; or that the statements by Mr.

      Murphy and Mr. Harvey concerning the inability of Respondent to deal with students on his bus, or Respondent's "attitude" toward his students, were untrue. None of those factors, individually or collectively, provide adequate provocation or justification for the threatening, profane, and unacceptable outburst by Respondent on September 18, 1996, on the job and in the presence of other public employees and students.

2. Just Cause

1. Just cause for termination of a non-instructional employee is not limited to the offensive conduct listed in Article IX, Section 4.C. of the collective bargaining agreement. Dietz v. Lee County School Board, 647 So. 2d 217, 219 (Fla. 2nd DCA 1994). In Jacker, the court held:

   . . . the right of a public employer to discipline an employee for 'proper cause'

   . . . embodies, without the need for separate delineation, the right to discipline for failure to show proper respect to the employer. . . . (citations omitted)

   Jacker, 426 So. 2d at 1151.

2. The essential element of just cause is the employee's misconduct and whether the employee had notice that such conduct constituted grounds for termination. Respondent's threatening and profane language on September 18, 1996, constituted misconduct toward his supervisor. He had prior notice that such conduct would result in his termination.

3. Respondent's misconduct on September 18, 1996, was rationally and logically related to Respondent's performance of his job duties. It occurred on the job and in the presence of other employees and students. It failed to show proper respect to his supervisor. It threatened proper supervisory discipline and employee harmony. Id.

4. Respondent had prior notice that such conduct would result in the termination of his employment. The directive issued to Respondent in March, 1995, provided Respondent with adequate and timely notice that any such action in the future would result in his termination.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver.

DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 24th day of July, 1997.

ENDNOTES

1/ It is not clear from the evidence when school started, but, on September 18, 1996, school would not have been in session very long.

2/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

3/ Respondent's argument that the first incident involved a challenge to his supervisor's veracity while the second incident involved a challenge to his supervisor's intelligence is not persuasive.

4/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

COPIES FURNISHED:

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Dr. Paul J. Hagerty, Superintendent Seminole County School Board Education Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773

Ned Julian, Esquire

Seminole County Public Schools Educational Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Thomas L. Johnson, Esquire

Law Offices of John Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

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: 96-005697

Orders for Case No: 96-005697