STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY DISTRICT )

SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1970

)

ELIZABETH PERKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 29, 1979, in Fort Myers, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the suspension and discharge of the Respondent, Elizabeth Perkins, by the Lee County District School Board (Board) from her employment as a school bus driver.

APPEARANCES

For Petitioner: Harry A. Blair, Esquire

2149 McGregor Boulevard Post Office Box 1467

Fort Myers, Florida 33902

For Respondent: Robert R. Dormer, Esquire

Florida Rural Legal Services, Inc. 2502 Second Street, Suite 16

Fort Myers, Florida 33901 PRELIMINARY MATTERS AND ISSUES

Prior to commencement of the hearing, the parties raised the question of who carried the burden of proof and the burden to go forward. It was determined that the Board was the party seeking relief (the discharge of Perkins), was in fact the Petitioner, and carried the burden to go forward and the burden of proof. The style of the case is amended to reflect that ruling.

The parties also stipulated to the authenticity and introduction into evidence of Perkins' employee's file as Exhibit 1 and of the Transportation Administrative Directives as Exhibit 2. After the hearing began the Respondent moved to dismiss the case on the basis that the Board had not adhered to Transportation Administrative Directive 3541-45 because the Respondent was discharged on her second suspension and not her third suspension. This Motion was denied on the basis that the Directive is a guideline to disciplining employees and not a mandate as reflected in the language contained in its final paragraph, "Primary disciplinary action shall be suspension without pay unless termination of employment is warranted."

The letter of discharge is deemed to be the "complaint," in that it states the actions taken by the Board and the basis for those actions. Based on the letter of discharge, the issues are whether Perkins was grossly insubordinate and failed to follow rules and regulations resulting in her suspension, and whether she was repeatedly grossly insubordinate and continually failed to follow rules and regulations resulting in her termination. Because the definition of insubordination relates directly to following orders or directions, the charge of failing to follow directions will be considered as insubordination, and the secondary charges limited to failure to follow rules and regulations.

FINDINGS OF FACT

1. Elizabeth Perkins was employed by the Lee County District School Board from August of 1978 until September 12, 1979, as a school bus driver.

   
   

2. The facts reveal only two instances of possible insubordination by Perkins. These were the events of September 6 and September 10, 1979. The facts show that on September 10, 1979 Perkins' supervisor ordered her to return to the school bus garage. This order was received by Perkins, who understood that she was to return to the garage immediately. Perkins failed to follow this order, which was lawful and which her supervisor had the authority to give.

   
   

3. The second instance occurred on September 6, 1979, and the facts surrounding the alleged insubordination are not clear. The letter of reprimand of September 7, 1979 assessing a one-day suspension for Perkins' acts recites several alleged deficiencies, as follows:

   
   

   Knowingly driving bus #22 with an unsafe condition. The fifth seat was missing. I told you to report the seat missing in the garage. You refused - claimed we are plotting against her. You drove the bus to North High for your 12 o'clock take home run after I told you to get the seat replaced.

   Failed to make out service request and work order after told to do so.

   
   

   Second offense - One day off without pay.

   The day to be determined by the Driver Super- visor.

   
   

4. The facts do not support the first statement, because the seat was not discovered to be missing until after the early morning runs. Culpability, if any exists, for the missing seat rests with the mechanic(s) who failed to replace the seat. While Perkins may have contributed to the situation by failing to discover the missing seat in her pre-operation inspection, the facts reveal she was unable to find her bus that morning because it had been moved by the mechanics, and she started her run late. This mitigates any potential culpability for her lax inspection, because no procedure existed for advising drivers of the location of their buses when they have been worked on by the mechanics overnight.

   
   

5. Perkins was advised to report the missing seat on the applicable forms by her supervisor. In the following exchange Perkins said she would not fill out the forms because it was not her fault the seat was missing. The supervisor discovered after she spoke with the mechanics that the seat had been removed by

   the mechanics. While Perkins' lack of diplomacy may be criticized, her refusal to fill out forms was in the context of her denial of responsibility for the missing seat and not a refusal to fill out forms per se. The facts also show that submission of such forms was not necessary, and one would not expect it to be necessary, to have a repair finished which had already begun.

   
   

6. The issue of insubordination arises in the next allegation in the reprimand, that Perkins made the North High 12:00 o'clock run after being told to get the seat replaced. The facts related to this order are less than clear. The supervisor's direct testimony on Page 50 of the Transcript indicates that she told Perkins to come to the garage. Perkins' testimony at Page 99 indicates that she advised her supervisor if she came in she would be late for her next run. Perkins proceeded without children on board to North High School and did not go to the garage. The supervisor's memorandum of September 6, 1979 makes no mention of the alleged order to report to the garage. That memorandum indicates that after the seat was reported missing the supervisor checked with the chief mechanic, and it was determined a mechanic had failed to replace the seat. The seat was then taken to the high school by a mechanic, where it was installed before children boarded the bus. The version of events reported in the memorandum is consistent with the fact that the supervisor acquiesced to Perkins' going on to the school rather than being late, as Perkins suggested.

   
   

7. The supervisor testified that the allegation in the reprimand that Perkins failed to make out a service request and work order after being told to do so related to Perkins' failure to make out a work request on September 5, 1979 in accordance with the standing procedures. No evidence was introduced that Perkins had ever failed to do so before or after this incident, or that she refused to do so on September 5, 1979.

   
   

8. The last paragraph of the reprimand references a second offense and assesses a penalty. The alleged second offense was knowingly operating the bus a second time in an unsafe condition with the seat out. The facts show that Perkins had no knowledge of the missing seat on her first run. After she reported the missing seat Perkins did not drive the bus with students on board. The seat was installed at the high school before the students boarded the bus. The unsafe condition was unsafe to students, not to the operator of the bus or the public. The facts again do not sustain the allegation that Perkins knowingly drive the bus in an unsafe condition a second time. The remainder of the record does not reflect any acts of insubordination, much less gross insubordination.

   
   

9. Concerning the allegations that Perkins violated rules and regulations on September 10, 1979, the allegation as stated in the September 12th letter of reprimand assessing an indefinite suspension does not recite any rules or regulations that were violated. No evidence was introduced at hearing of any rule or regulation that Perkins violated or any acts she committed that were contrary to any rule or regulation on September 10, 1979.

   
   

10. Prior to September 10, 1979, Perkins had been cited with written reprimands on seven occasions, four of which were dated on September 6 and 7, 1979. All these reprimands and the facts surrounding them were made part of the record. The reprimand dated June 30, 1978, for reckless driving, arose out of Perkins' striking a mailbox and was warranted. The reprimand dated May 25, 1979, for wanting to see Mr. Lane without going to her supervisor first, was unwarranted. The facts clearly disclose that Perkins saw her supervisor and explained that she wanted to see Mr. Lane because her supervisor had not assisted her with her complaint. There was no regulation cited that prohibits

    an employee from going over his or her immediate supervisor to seek resolution of a problem the immediate supervisor has not been able to resolve. It is doubtful that such a regulation exists, being contrary to most prevailing schemes of management. This reprimand indicates the less-than-desirable working relationship existing between Perkins and her supervisor. The written reprimand dated June 21, 1979, for filling out five work orders, does not reference any rule or regulation concerning proper use of work orders. More importantly, the record reflects that Perkins had filled out single work orders previously regarding these deficiencies. The record reflects that only one of the five work orders was checked by a mechanic. The fact that, after the five work orders were filled out, the mechanic(s) declared the bus safe to operate does not address the problems pointed out by Perkins, because the problems were not critical safety items. The evidence does not show any rule or regulation which was violated by submitting five work orders. It does reflect the further disintegration of the relationship between Perkins and her supervisor, particularly when it is considered that Perkins went to her supervisor about a route change and not repairs to her bus. The facts surrounding the events of September 6 were discussed in detail above. The reprimand dated September 6, for being late on her route, related directly to Perkins' being unable to find her bus because the mechanics had moved it. As stated above, in the absence of some procedure to advise drivers of the whereabouts of their buses after they have been repaired, a driver cannot be held responsible for being late when it is caused by his or her bus being misplaced in the motor pool. The reprimand for discharging a student at an unauthorized stop on September 6 cites an existing rule. Perkins explained that she let the student off the bus because the student's assistant principal asked her to do so at the parents' request.

    Although Perkins lacked authority to grant the request, the necessity to maintain working relationships with school staff was emphasized earlier to Perkins. She told the assistant principal she lacked authority to grant the request, whereupon the assistant principal signed the parents' note, indicating his personal request and concurrence with their request to drop off the student. While this is a violation of the rule, these facts show that Perkins did not assume direct and sole responsibility for the action. In the reprimand dated September 7, for failing to return to the garage between routes, there is no rule or regulation cited. No evidence was introduced concerning the rule or regulation alleged to have been violated. Testimony was received from the supervisor that Perkins was told on September 6 not to park away from the garage. Perkins stated that she had been given permission to stop at her mother's house between routes to permit her to take care of her personal needs. According to the reprimand, this permission was withdrawn on September 6. The only evidence that Perkins parked at her Mother's house on September 7 was the reprimand itself. Perkins' immediate supervisor wrote the reprimand on information provided by the assistant supervisor; however, the assistant supervisor had no recollection of the dates of her observation.

    
    

11. Summarizing the seven reprimands received by Perkins prior to September 10, 1979, only the one related to striking a mailbox, the one for letting a student off at an unauthorized stop, and the one for parking away from the garage between routes were proven to have any substance in fact or law. There was no rule or regulation cited or referenced at hearing for parking at the garage between routes, and mitigation exists for letting the student off at an unauthorized stop.

    
    

12. The facts show that Perkins maintained a belligerent attitude toward her supervisor. This attitude was inappropriate and interfered with employment relationships. The record also reveals that the supervisor had or developed a belligerent attitude toward Perkins. The supervisor, rather than counseling

    Perkins and advising her that her attitude would not be tolerated and that she would have to conform to the generally expected standards of behavior, began to ignore Perkins' legitimate requests and reprimanded her for conduct which was not proscribed by any rule or regulation. This compounded the problem rather than solving it.

    
    

    CONCLUSIONS OF LAW

    
    

13. The disciplinary letter of September 12, 1979 assessed two penalties against Perkins for two separate offenses on September 10, 1979: Indefinite suspension and termination of employment. The indefinite suspension was assessed for insubordination and failure to follow directions, rules and regulations on September 10, 1979. The termination was assessed for repeated gross insubordination and continued refusal to follow directions prior to September 10, 1979.

    
    

14. Considering the facts presented concerning Perkins' actions on September 10, 1979, clearly she received a lawful order from her supervisor which she refused to obey. Perkins' conduct was insubordinate as charged in the letter. There is no reference in the disciplinary letter of September 12, 1979 to any rule or regulation Perkins violated. Further, there was no evidence presented concerning any rule or regulation she violated on that date. The second part of the allegation is not proven.

    
    

15. Regarding the allegation of continued gross insubordination, Perkins' conduct on September 6, 1979 was the only prior instance in which she possibly refused a lawful order. On that occasion Perkins was told to do two different things. She was told: (1) To fill out a work order to get the seat replaced, and (2) to bring the bus in to be fixed.

    
    

16. Considering the first order given Perkins, to fill out the work order, from the context of the conversation with her supervisor it is clear that Perkins' refusal was not per se to fill out the work order but a refusal to accept responsibility for the missing seat. In fact, Perkins was not responsible for the missing seat, and it would have been inappropriate for her to have filled out a work order for repairs already commenced by the mechanics and not completed. Although a supervisor has authority to supervise, direct and correct subordinates, there is no rule which requires a subordinate to stand mute when unjustly accused. This concept is inherent in the line of cases dealing with pre-termination hearings before taking disciplinary action. The whole purpose of these informal confrontations is to allow the employee the opportunity to explain his or her side of the controversy. If the employee is expected to stand mute or risk punishment if he or she responds, then the right to confrontation is useless. Perkins had the right to deny responsibility for the missing seat, which she did by refusing her supervisor's direction to fill out a work order. This order was based on an erroneous assumption by her supervisor that Perkins was responsible for the missing seat.

    
    

17. The supervisor directing paperwork to be filled out in response to a notification that a critical situation existed which interfered with the operation of the bus also defies logic. It would appear that the first line of inquiry would have been to determine how the bus' operation could be continued or its repair accomplished without jeopardizing its operation.

    
    

18. Yet, the second order allegedly given Perkins on September 6 was to return to the garage. Unlike the event of September 10, there is a question whether this order was ever clearly given, received and refused. The

    supervisor's testimony on Page 71 of the Transcript comes close to stating there was a refusal, but the supervisor amends that testimony to say, "I won't say she refused. She didn't come in." Perkins testified that when she was told to come in she advised her supervisor she would be late if she did that. At this point the subject was apparently broken off or dropped by both Perkins and her supervisor. What is clear is that the supervisor's memorandum, made at the time of the event, makes not a single reference to this act of alleged insubordination. Further, the reprimand for September 6 falls short of charging insubordination by Perkins.

    
    

19. An order must be given, received and understood for the subordinate to be disciplined for refusing to follow it. If the subordinate questions the order, questions the advisability of carrying out the order, expresses an inability to carry out the order, or expresses doubt as to the nature of the order the order must be restated. The Board has failed to prove that the supervisor gave an order which was lawful under the circumstances and that Perkins refused by word or deed to obey the order.

    
    

20. There are no other instances in which Perkins was insubordinate, much less grossly insubordinate. The Board has failed to prove that Perkins was repeatedly grossly insubordinate, the first charge upon which her termination is based.

    
    

21. Regarding the second charge that Perkins continually failed to follow rules and regulations, Perkins' entire disciplinary record was reviewed. Of the reprimands received by Perkins, only three were determined to have any substance in fact: The reprimand given in June of 1978 for reckless driving (hitting a mailbox) contrary to TAD 3541-45; dropping a student at an unauthorized stop on September 6, 1979 contrary to Paragraph 4 of TAD 3541-22; and parking away from the garage between routes on September 7, 1979. The matters in mitigation of the second reprimand are discussed in the Findings of Fact, supra. No rule or regulation concerning parking buses between routes was cited. Considering these instances as a whole, there is no showing that Perkins violated the rules and regulations continuously. The grounds for discharging Perkins are not proven.

    
    

22. The record does reflect that Perkins was belligerent toward her supervisor. This attitude was one which warranted corrective action, to include disciplinary action if necessary. The testimony presented in this cause by Perkins' supervisor has been viewed critically in light of what can best be described as her lack of objectivity in assessing Perkins. This tendency is reflected most clearly in the reprimand Perkins' supervisor gave her for going to see the supervisor's supervisor, although Perkins requested her permission and told her why she wanted to see the person. However, the record clearly shows that Perkins was insubordinate and willfully so on September 10, 1979.

The record reveals that Perkins precipitated this event to dramatize the revocation of her permission to stop at her mother's house to tend to her personal needs. Such behavior is grossly inappropriate and would in most instances be sufficient to warrant discharge. However, the accepted manner for raising such problems, which is appeal to the supervisor's supervisor, had been cut off to Perkins by the earlier reprimand. Perkins' conduct must be viewed in light of this important fact and, while not condoned, substantially mitigated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board reinstate Perkins in her former position with a 90-day suspension without pay from September 12, 1979.

DONE and ORDERED this 26th day of February, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Harry A. Blair, Esquire 2149 McGregor Boulevard Post Office Box 1467

Fort Myers, Florida 33902

Robert R. Dormer, Esquire

Florida Rural Legal Services, Inc. 2502 Second Street, Suite 16

Fort Myers, Florida 33901

Docket for Case No: 79-001970

Orders for Case No: 79-001970