STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

SOPHIA CHEEKS, )

)

Respondent. )

Case No. 03-0930

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this matter on September 12, 2003, in Miami, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Mary Jill Hanson, Esquire

Hanson, Perry & Jensen, P.A.

105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School

Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and,

if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.

PRELIMINARY STATEMENT

By letter dated March 13, 2003, Petitioner notified Respondent that Petitioner intended to impose the proposed suspension, effective March 12, 2003, for the violations alleged in this proceeding. Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

On March 21, 2003, ALJ Errol H. Powell scheduled the administrative hearing for May 21, 2003. Petitioner filed a Notice of Specific Charges on May 7, 2003, based upon an incident in which the Notice alleged that Respondent instigated a physical altercation with a student on a school bus. On

May 23, 2003, Petitioner filed a Motion to Amend its Notice of Specific Charges to include an allegation of Misconduct in Office for allegedly threatening students and endangering their physical health and safety. ALJ Powell granted the motion and rescheduled the hearing for September 12, 2003.

At the hearing, Petitioner presented the testimony of six witnesses, and submitted one exhibit for admission in evidence. Respondent testified, called one witness, and submitted one exhibit for admission in evidence.

The identity of the witnesses and exhibits and any rulings are set forth in the Transcript of the hearing filed on

October 28, 2003. The undersigned granted the parties' Unopposed Motion for Extension of Time to file proposed recommended orders (PROs), and the parties timely filed their respective PROs on November 24, 2003.

FINDINGS OF FACT

1. Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract).

   Petitioner has employed Respondent as a school bus driver within the District for approximately ten years.

2. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver

   must then radio or telephone a supervisor or the police for further assistance.

3. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route.

4. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle.

5. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps

   of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch."

6. Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C.

7. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent.

8. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them.

9. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her.

10. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris).

11. Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare."

12. A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

14. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that Respondent committed the acts alleged in the Amended Notice of Specific Charges and the reasonableness of the proposed penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). Petitioner satisfied its burden of proof.

15. Petitioner's Rule 6Gx13-4-1.08 prohibits violence in the workplace. In relevant part, School Board Rule 6Gx13-4-1.08 provides:

    Nothing is more important to Dade County Public School than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest and/or prosecution.

    
    

16. Respondent violated School Board Rule 6x13-4-1.08 on October 8, 2002. Respondent drove a school bus in a manner that

    failed to protect the safety and security of the students riding in the bus. Respondent engaged in a physical altercation with a student and inadvertently harmed other students who attempted to intervene. Respondent threatened the students riding in the bus.

17. Petitioner's Rule 6Gx13-4A-1.21 prescribes a code of conduct with which each employee must comply. In relevant part, School Board Rule 6Gx13-4A-1.21 provides:

    All persons employed by The School Board of Miami-Dade County, Florida, are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.

    
    

    Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.

    
    

18. Respondent violated School Board Rule 6Gx13-4A-1.21 on October 8, 2002. Respondent used profane language in the workplace when Respondent used the term "bitch" to refer to a student. Respondent engaged in unseemly conduct when Respondent physically confronted C.C. rather than attempting to defuse the situation.

19. Respondent failed to follow the training provided by Petitioner. Respondent did not attempt to defuse the situation when C.C. referred to Respondent as a "bitch." Rather,

    Respondent escalated the situation by verbally retaliating, getting out of her seat, physically confronting C.C., and threatening the other students on the bus.

20. Petitioner strictly forbids physical discipline of students. In relevant part, School Board Rule 6Gx13-5D-1.07 states:

    The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. . . .

    
    

21. Respondent violated School Board Rule 6Gx13-5D-1.07 on October 8, 2002. Respondent utilized physical confrontation and force to control C.C. and students who attempted to intervene. Respondent failed to follow the procedures prescribed by Petitioner for the alternative control of discipline.

22. Florida Administrative Code Rule 6B-4.009(3) defines misconduct in office to include a violation of the Code of Ethics of the Education Profession, adopted in Florida Administrative Code Rule 6B-1.001, and a violation of the Principles of Professional Conduct for the Education Profession in Florida, adopted in Florida Administrative Code Rule

    6B-1.006, when the violation is so serious that it impairs Respondent's effectiveness in the school system. Florida Administrative Code Rules 6B-1.001 and 6B-1.006(3)(a), in

    relevant part, respectively require Respondent to "exercise the best professional judgment and integrity" and to make "reasonable efforts to protect the student from conditions harmful to . . . the student's . . . physical health and safety."

23. On October 8, 2002, Respondent engaged in misconduct in office. Respondent failed to exercise the best professional judgment or to make reasonable efforts to protect the students from conditions harmful to their physical health and safety. Respondent's misconduct in office was so serious that it impaired Respondent's effectiveness as a school bus driver.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay.

DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 4th day of December, 2003.

COPIES FURNISHED:

Manny Anon, Jr., Esquire AFSCME Council 79

99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169

Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A.

105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401

Melinda L. McNichols, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

Honorable Jim Horne, Commissioner of Education Department of Education

325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400

Merrett R. Stierheim, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1394

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: 03-000930

Orders for Case No: 03-000930