STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

LUIS R. ROSARIO,

Respondent.

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) Case No. 00-2080

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RECOMMENDED ORDER

On September 18, 2000, a formal administrative hearing in this case was held by videoconference in Fort Myers and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Victor M. Arias, Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3988

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUE

The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.

PRELIMINARY STATEMENT

By "Petition for Suspension Without Pay and Benefits Pending Termination of Employment" dated April 14, 2000, the School District of Lee County notified Luis R. Rosario that the District intended to terminate his employment as a school bus operator. Mr. Rosario requested a formal administrative hearing to challenge the proposed termination. The District forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

During the hearing, the District presented the testimony of ten witnesses and had Exhibits numbered 3-13, 15, 17, 18 (pages

47-56), 19, 21 (pages 105-107) and 22 admitted into evidence. The District filed the deposition testimony of two witnesses. The Respondent presented the testimony of two witnesses, testified on his own behalf, and had Composite Exhibits numbered 1-2 admitted into evidence. The Respondent filed the deposition testimony of three witnesses. The Transcript of the hearing was filed on October 12, 2000. Both parties filed Proposed Recommended Orders on October 23, 2000.

FINDINGS OF FACT

1. Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District).

2. The Respondent has been employed as a bus operator since August 1994.

3. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period.

4. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School.

5. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon.

6. D.M. was not a regular passenger on the Respondent's

   
   

   bus.

   
   

7. According to District policy, in order for a student to

   
   

   ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator.

8. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership.

9. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent.

10. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note.

11. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28.

12. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus.

13. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28.

14. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M.

15. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter.

16. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus.

17. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful."

18. During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner.

19. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate.

20. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus.

21. There is no evidence that the Respondent cursed in the presence of the principal or D.M.

22. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was

    so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers.

23. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly

    continued to argue before returning to the bus and leaving the campus.

24. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion.

25. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak.

26. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials.

27. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them.

28. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false.

29. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator.

30. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus.

31. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride.

32. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner.

33. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students

    and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever.

34. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area.

35. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events.

36. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School.

37. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999.

38. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.

    CONCLUSIONS OF LAW

    
    

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

40. The School Board has the burden of establishing the allegations of the case by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476

    (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). In this case, the burden has not been met.

41. The School Board has the authority to discipline noninstructional employees for "just cause." Just cause includes, but is not limited to, misconduct, incompetence, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Section 231.36(1)(a), Florida Statutes.

42. The credible evidence presented in this case fails to establish that the Respondent's behavior rises to the level of misconduct sufficient to warrant termination of employment.

43. The evidence in this case establishes that the Respondent properly refused to permit D.M. to board the bus.

    D.M. was disruptive. When D.M. complained to the school principal, the principal became involved in a conversation that ended with the principal threatening to report the Respondent to the transportation supervisor.

44. Given the circumstances, it is quite likely that the Respondent muttered "I don't need this damn job" when departing from Trafalgar Middle School. The Respondent acknowledges that he may have made the statement, but that it was spoken "under his breath" and was not intended for the students to hear.

    While any use of profanity in front of students is certainly ill advised, in this case it does not constitute just cause for termination of employment.

45. As previously stated, additional allegations ranging from further use of inappropriate language to attempting to run over students exiting his bus, are not supported by reliable evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated

April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension.

DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000.

COPIES FURNISHED:

Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3988

Robert J. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

Tom Gallagher, Commissioner Department of Education

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

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Dr. Bruce Harter, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3916

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: 00-002080

Orders for Case No: 00-002080