STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF SARASOTA ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6946

JANET SHRADER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in SARASOTA, Florida on April 20, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Maria D. Korn, Esquire

Kunkel & Miller

290 Cocoanut Avenue SARASOTA, Florida 34236

For the Respondent: Herbert W. Abell, Esquire

3224 Markridge Rd.

SARASOTA, Florida 34231 STATEMENT OF THE ISSUES

The issue for consideration herein is whether the Respondent, Janet Shrader, should be terminated from employment with the School Board of SARASOTA County, (Board), because of the misconduct alleged in the Superintendent's letter of intent to recommend discipline dated November 9, 1989.

PRELIMINARY STATEMENT

By letter of November 9, 1989, Dr. Charles W. Fowler, Superintendent of the SARASOTA County Schools, notified Respondent of her suspension with pay and his intention to recommend to the Board that she be suspended without pay pending termination as the result of an incident of alleged misconduct by her on October 19, 1989. On November 30, 1989, Ms. Shrader requested a formal hearing and on December 11, 1989, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated January 16, 1990, after both parties had been served with an Initial Order herein and given opportunity to respond, the undersigned set the matter for hearing on February 22, 1990. However, as a result of continuances requested by both parties, the matter was ultimately rescheduled for April 20, 1990, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Michelle D. Cocanower, a teacher at Tackett School; Detective Robert Bang, a school resource officer at the same school; and Margaret J. Tucker, driver on the bus in question; and introduced Petitioner's Exhibits 1, 3 and 4. Petitioner's Exhibit

2 for Identification was not admitted. Petitioner was given leave to file the deposition of Linda Rizzo, another teacher at Tackett School, but chose not to do so. Respondent did not present any witnesses. She introduced Respondent's Exhibit A.

A transcript of the hearing was provided. Only Petitioner submitted Proposed Findings of Fact. These have been accepted and are incorporated in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. By Stipulation of Fact, the parties agreed, and it is found, that:

   
   

   1. Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide.

      
      

   2. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator.

      
      

   3. Bus aides are only assigned to buses which transport students participating in the exceptional student education program.

      
      

   4. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services.

      
      

   5. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall.

      
      

   6. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole."

   
   

2. On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset.

   
   

3. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and

   pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off.

   
   

4. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found.

   
   

5. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response.

   
   

6. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children.

   
   

7. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony.

   
   

8. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year.

   
   

9. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination.

   
   

10. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three

    years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier.

    
    

11. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

13. Petitioner seeks to discharge Respondent from employment with it for her alleged inappropriate discipline of a severely emotionally disturbed student by yelling at him and attempting to kick him as he disembarked from a school bus on October 19, 1990.

    
    

14. Under the provisions of Section 230.33(7)(e), Florida Statutes, District Superintendents have the authority to suspend employees for appropriate grounds and recommend much employees for dismissal when justified. The Sarasota Countiy School Board has implemented Rules delineatitng the bases for disciplinary action against both instructional and non-instructional personnel, and providing for a due process hearing in the event disciplinary action is contemplated1ed.

    
    

15. Here, the superintendent, Dr. Fowler, has, consistent with his authority, suspended Respondent from her duties, with pay, because of her reaction toward Tony Sanders on the date set out in his letter to her of November 9, 1989. He has also recommended to the Board that it suspend her without pay pending dismissal for the same actions. Respondent, in response to that intended action, requested a formal hearing.

    
    

16. There is no dispute as to the evidence of Ms. Shrader's involvement in the actions alleged. She was present and admits to having yelled at Tony and reflexively kicked back at him when he kicked her on his way out of the bus. There is some question as to whether Tony attempted to kick her or not, but even if he did, he is a child, and an emotionally handicapped one at that. She is an adult with several years experience in dealing with children as a bus aide, and under any circumstances, her attempt to kick the child back was uncalled for and unjustified.

17. In addition, there is evidence that in her efforts to remove the boy from the bus, she utilized a grip on his elbow which was not at all in keeping with the ACT process she had been taught. It is fortunate that he was not injured as a result of her handling.

    
    

18. The evidence also indicates that she overreacted verbally to Tony when she assumed, without knowing the background, that he was at fault in his altercation with the Resnick boy. To automatically assume that a particular child is at fault, without making any attempt to determine what happened, is unprofessional and inappropriate behavior. Further, her loss of composure and her resorting to yelling and screaming on a bus crowded with emotionally disadvantaged children falls far outside the bounds of propriety and grossly deviates from the calm and soothing approach best taken with children in this condition on a stress situation.

    
    

19. Taken together, Ms. Shrader's actions were singularly inappropriate. The opinion of her therapist that her own emotional condition is in remission and that she constituted no danger to the safety of the children in her charge appears to have been premature. In the circumstances of this case, her reactions as described here, when considered along with the other aberrant behavior she demonstrated on the day is question, results in the conclusions that her continued close relationship with emotionally disturbed children should be out of the question, and the propriety of her working with children at all is in question. Notwithstanding the statement from a former driver that in the years she worked with him, she never displayed any untoward conduct in relationship to the children on his bus, her most recent actions clearly raise a caution signal which the Board cannot reasonably disregard. Clearly, it would be inappropriate for Ms. Shrader, as she presently appears, to work with children and the Board's proposed action appears to be both factually and legally correct.

RECOMMENDATION

Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board.

RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990.

COPIES FURNISHED:

Maria D. Korn, Esquire Kunkel & Miller

290 Cocoanut Avenue SARASOTA, Florida 34236

Herbert W. AbeIl, Esquire 3224 Markridge Rd.

SARASOTA, Florida 34231

Janet Shrader

22 Goodrich Street SARASOTA, Florida 34236

Dr. Charles W. Fowler Superintendent of Schools Sarasota County

2418 Hatton Street

Sarasota, Florida 34237

Docket for Case No: 89-006946

Orders for Case No: 89-006946