STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1243

)

THAKA N. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 28, 1995, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald A. Williams, Esquire

Dade County School Board

1450 Northeast Second Avenue, Suite 562

Miami, Florida 33132

For Respondent: Ben R. Patterson, Esquire

Patterson & Traynham Post Office Box 4289

Tallahassee, Florida 32315 STATEMENT OF THE ISSUE

Whether the Respondent committed the actions alleged by the Respondent in the Complaint and Notice of Hearing and, if so, whether the Respondent's employment should be terminated or some other disciplinary penalty be imposed.

PRELIMINARY STATEMENT

This proceeding arises from an incident during which the Respondent admittedly struck another employee with a baseball bat. The primary dispute in this proceeding concerns whether the Respondent was justified in striking the other employee. The factual issues in this case were narrowed by the Respondent's Answer and Affirmative Defense filed shortly before the hearing, in which the Respondent admitted many of the allegations in the Respondent's charging document.

At the formal hearing the Petitioner presented the testimony of four witnesses. The Petitioner did not offer any exhibits. The Respondent testified on her own behalf and also presented the testimony of three other witnesses.

The Respondent offered three exhibits into evidence, two of which were received and one of which was rejected.

At the conclusion of the formal hearing, the parties were allowed until August 10, 1995, within which to file their proposed recommended orders. The transcript of the formal hearing was filed on July 17, 1995. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Facts admitted by Respondent

1. The Employee [Respondent] was notified by the Superintendent of Schools, on or about August 15, 1994 that the Superintendent was recommending to the School Board, at its regularly scheduled meeting of August 24, 1994, that the School Board suspend the Employee [Respondent] and initiate dismissal proceedings against her from all employment with the Employer [School Board] effective at the close of the workday, August 24, 1994, for conduct unbecoming a School Board employee.

   
   

2. The Employer [School Board], at its regularly scheduled meeting of August 24, 1994, approved the Superintendent's recommendation. The Employee [Respondent], on or about August 25, 1994, was notified of the School Board's action.

   
   

3. The Employee [Respondent], on or about September 1, 1994, filed a Request for Hearing.

   
   

4. The Employer [School Board] is a political subdivision of the State of Florida, with its official headquarters located at 1450 Northeast Second Avenue, Miami, Florida, where it is engaged in providing free public education for students in Dade County, Florida.

   
   

5. The Employer [School Board], at all times material herein, has been, and continues to be, a public employer within the meaning of Florida Statutes, Section 447.203(2), and Article II, Section 1, of the Collective Bargaining Agreement.

   
   

6. The Employee [Respondent] was employed by the Employer [School Board] as a School Bus Driver in the Department of Transportation, and was assigned to the Northeast Transportation Center.

   
   

7. The Employee [Respondent], at all times material herein, was represented by AFSCME.

   
   

8. The Employee [Respondent], at all times material herein, was a public employee within the meaning of Section 447.203(3), Florida Statutes.

   
   

9. AFSCME, at all times material herein, has been, and continues to be, an employee organization within the meaning of Section 447.203(11), Florida Statutes, and Article II, Section 2, of the Collective Bargaining Agreement.

   
   

10. On or about January 20, 1994, the Employee [Respondent] struck a fellow School Board employee with a wooden baseball bat while on School Board property.

    
    

    Findings based on evidence at hearing 1/

11. The Respondent has been employed by the School Board of Dade County since November of 1991 as a School Bus Driver. Prior to the incident of January 20, 1994, the Respondent had never been disciplined by the School Board for any disciplinary infraction. The Respondent as considered to be a very good driver and a very conscientious employee.

    
    

12. At all times material to this proceeding, Ms. Yvonne Daniels was also employed by the School Board of Dade County as a school bus driver. At all times material to this proceeding, the Respondent and Ms. Daniels reported to work at the same location.

    
    

13. The Respondent and Ms. Daniels knew each other before either began to work for the School Board. Over the years the Respondent and Ms. Daniels have had a relationship marred by recurring hostile and antagonistic words and conduct. On various occasions they have yelled ugly things at each other, including threats of various types. On at least one occasion prior to January 20, 1994, the Respondent and Ms. Daniels engaged in fisticuffs. On at least one occasion prior to January 20, 1994, Ms. Daniels threatened the Respondent with a gun. Shortly after one of the verbal explosions between the Respondent and Ms. Daniels, someone scratched the Respondent's automobile. The Respondent and Ms. Daniels had a further exchange of unpleasant words when the Respondent accused Ms. Daniels of scratching the Respondent's car.

    
    

14. Some of the disharmonious activity between the Respondent and Ms. Daniels took place away from work. Other episodes occurred during work hours on the work premises. Some of these episodes came to the attention of the Respondent's supervisor. Prior to January 20, 1994, the supervisor had warned the Respondent that any further episodes of disruptive conduct between the Respondent and Ms. Daniels might result in disciplinary action, including the possibility of termination of employment.

    
    

15. Sometime during the night that began with sunset on January 19, 1994, and ended with sunrise on January 20, 1994, some unknown person or persons poured paint on the Respondent's car while the car was parked near the Respondent's residence. The Respondent's neighbors woke her up and told her what had happened to her car. One of the neighbors told her that a person named "Janice" had poured the paint on the Respondent's car. "Janice" is a nickname by which Ms. Daniels is sometimes known.

    
    

16. The Respondent spent several hours trying to remove the paint from her car. At about 5:00 a.m. on January 20, 1994, the Respondent drove to work. Shortly after arriving at work the Respondent saw Ms. Daniels in the parking lot where the school buses were parked. The Respondent walked towards Ms. Daniels and asked Ms. Daniels why she had poured paint on the Respondent's car. Ms. Daniels replied with words to the effect that that was not all she was going to do to the Respondent, that she was tired of the Respondent and was going to kill the Respondent. Immediately after this verbal exchange, the Respondent and Ms. Daniels both started walking toward their respective cars. When the Respondent got to her car she opened the door and removed a baseball bat. With the baseball bat in her hand, the Respondent ran back towards Ms. Daniels with the intention of striking Ms. Daniels, because the Respondent believed that Ms. Daniels was the person who had poured paint on the Respondent's car. Ms. Daniels was by then standing beside her own car. The Respondent intentionally struck Ms. Daniels with the baseball bat at least two times. The Respondent intended to cause injuries with each blow. Each blow with the bat caused injuries to Ms. Daniels. Other bus drivers intervened and stopped the Respondent from swinging the bat again. The Respondent's attack caused Ms.

    Daniels to be knocked to the ground. Immediately after the attack, Ms. Daniels opened her car door, removed a small pistol from under the front seat, and attempted to load a clip of bullets into the pistol. Other bus drivers intervened and prevented Ms. Daniels from loading or discharging the pistol.

    Ultimately, another employee took Ms. Daniels' pistol and left the premises before the police came to investigate the incident.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The School Board is authorized by statute to suspend or dismiss its employees. Section 230.23(5)(f), Florida Statutes.

    
    

19. School Board Rule 6Gx13-4A-1.21(1) reads as follows, in pertinent part:

    
    

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

    
    

20. The Respondent's act of attacking another employee under the circumstances described above is a criminal act that reflects discredit upon both the Respondent and the School Board. It was by no stretch of the imagination an act of self defense. It is a serious act of misconduct which exposes other employees to grave risk of substantial injuries or death and is the type of misconduct which cannot be tolerated in the workplace. The appropriate disciplinary action for such misconduct is dismissal from employment.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County issue a final order in this case dismissing the Respondent from her position of employment.

DONE AND ENTERED this 25th day of August 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 25th day of August 1995.

ENDNOTE

1/ There was a great deal of conflict in the testimony presented at the formal hearing. The findings of fact are based on what appeared to the Hearing Officer to be the most persuasive portions of the evidence.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner: Paragraphs 1 through 8: Accepted.

Paragraph 9: Rejected as contrary to the greater weight of the evidence.

Paragraph 10: Rejected as irrelevant or as subordinate and unnecessary details.

Paragraph 11: Rejected as contrary to the greater weight of the evidence.

Paragraph 12: Rejected as subordinate and unnecessary details inasmuch as this is a de novo proceeding.

Paragraph 13: Accepted in substance.

Findings proposed by Respondent:

Paragraphs 1 and 2: Accepted in substance.

Paragraphs 3 through 5: Accepted in substance for the most part, but with some details corrected or clarified and some details omitted as unnecessary.

Paragraph 6: First sentence is accepted, but in the context of many other factual details. The second sentence is rejected as contrary to the greater weight of the evidence. (The greater weight of the evidence was to the effect that the Respondent was not afraid of Ms. Daniels on the morning of January 20, 1994.)

Paragraph 7: Accepted in substance.

Paragraph 8: Rejected as contrary to the greater weight of the evidence. Paragraph 9: Accepted in substance.

COPIES FURNISHED:

Gerald A. Williams, Esquire Dade County School Board

1450 Northeast 2nd Avenue, Suite 562

Miami, Florida 33132

Ben R. Patterson, Esquire Patterson & Traynham

Post Office Box 4289 Tallahassee, Florida 32315

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast 2nd Avenue Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-001243

Orders for Case No: 95-001243