vs.
GARY T. GIANINOTO,
Respondent.
) Case No. 06-0938
Pursuant to notice, a formal hearing was held in this case before Daniel M. Kilbride, the designated Administrative Law Judge of the Division of Administrative Hearings, on June 15 and 16, 2006, in Fort Myers, Florida.
For Petitioner: Robert Dodig, Jr. Esquire
For Respondent: Robert J. Coleman, Esquire
Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
On March 14, 2006, Respondent, Gary T. Gianinoto, was suspended without pay, and Petitioner subsequently filed a Petition for Termination of Employment. Respondent timely requested an administrative hearing and this matter was referred to the Division of Administrative Hearings (DOAH) on March 22, 2006, to conduct the administrative hearing. The final hearing was set for June 15 and 16, 2006.
At the hearing, Petitioner, Lee County School Board presented the testimony of three witnesses: Armando de Leon, Director of Transportation South; Jack Shelton, Executive Director for Transportation; and Barbara Giles, Assistant Supervisor of Transportation South. The testimony of Nena Garrett, District Safety Supervisor, was admitted via deposition, due to her unavailability for the hearing.
Petitioner's Exhibits numbers 1 through 28 were offered and admitted into evidence. Respondent presented the testimony of three witnesses: Deputy John Kinsey, Lee County Sheriff's Office; David Deberardis, a mechanic, and Respondent testified in his own behalf. Respondent's Exhibits number 1 through 21 were offered and admitted in evidence. At the conclusion of the hearing, the parties agreed to file proposed recommended orders within ten days of filing the transcript. The parties'
Proposed Recommended Orders were timely filed and each have been carefully considered in the preparation of this Recommended
Order.
Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound.
The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC).
Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006.
On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department.
Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative.
Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone.
On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing
students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired.
Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005.
Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time.
Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus.
On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus.
Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound.
When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day.
Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily.
Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005.
Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run.
Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident.
Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired.
Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic.
Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed.
De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search.
Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search.
During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a
knife blade estimated to be a two inch to two and a half inch blade, along with other tools.
Respondent admitted to de Leon that the knife was his.
He also admitted that he had placed the knife in the briefcase, but had forgotten it was there.
In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen.
Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows:
Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite.
Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin.
De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past.
De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office.
Respondent was asked to come into de Leon's office.
Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible.
A union representative did not arrive at de Leon's office prior to Respondent's departure.
De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife.
De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely
agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted.
However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office.
Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon.
The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon.
The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will.
Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse,
from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises.
Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised
de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on.
Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances.
Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound.
Respondent ignored the deputy's advice and drove from the premises.
Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative.
Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings, pursuant to Section 120.569 and Subsections 120.57(1) and 1012.33(6)(a), Florida Statutes (2005),1 and School Board Policy 1.80(6)(c).
As bus operator, Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes.
The superintendent of the district has the authority to recommend to the Petitioner that educational support employees be suspended and/or dismissed from employment.
§ 1012.27, Fla. Stat.
The School Board has the authority to terminate and/or suspend without pay educational support employees.
§§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.
An educational support employee can only be terminated for the reasons set forth in the collective bargaining agreement (SPALC), which governs these employees. § 1012.40(2)(b), Fla. Stat. According to the applicable collective bargaining agreement, support employees can only be terminated for "just cause." SPALC at 7.09.
"Just cause" is not defined in the SPALC agreement nor does it provide for a progressive discipline plan. In the absence of some rule defining just cause, Petitioner has discretion (subject to challenge via a hearing) in setting standards which subject an employee to discipline. See Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994).
In the case of support personnel, "just cause" may include, but is not limited to, misconduct in office, incompetence, gross insubordination, willful neglect of duty, or an act involving moral turpitude as such are defined by the State Board of Education Rules. Lee County School Board v. Kehn, 2005 WL 428965 (Fla. Div. Admin. Hrgs.), citing Lee County
School Board v. Simmons, 2003 WL 21673031 (Fla. Div. Admin. Hrgs.).
Petitioner has the burden of establishing just cause by a preponderance of the evidence. McNeill v. Pinellas County
School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).
Lee County School Board Administrative Regulation 2.71, Threats of Violence, states in paragraph two,
There shall be a "zero" tolerance policy for threats of violence. No student, staff, parent/guardian or any other guardian or any other person shall make any verbal, written or electronically communicated (e-mail) threat, suggestion or prediction of violence against any person or group of persons or to any District-owned facility. Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.
Respondent's actions towards Armando de Leon, Petitioner's director of transportation for the south zone, in his office, clearly and unambiguously constitutes violence against another person, and violates School District Administrative Regulation
2.71 and constitutes just cause for discipline, up to and including termination.
Florida Administrative Code Rule 6B-4.009(4) defines gross insubordination or willful neglect of duty as a constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.
Lee County School Board Policy 4.70, Alcohol, Drug and Tobacco-Free Workplace, states in paragraph (8), "Employees who are directed to take a physical examination, blood, breathalyzer, urinalysis or other test allowed by law, and refuse or fail to do so when and as directed . . . shall be subject to disciplinary action up to and including termination."
The language of School Board Policy 4.70 mirrors the language from Section 112.0455, Florida Statutes, the Drug-Free Workplace
Act.
Specifically, Subsection 112.0455(10)(f), Florida
Statutes, states, "If an employee or job applicant refuses to submit to a drug test, the employer shall not be barred from discharging or disciplining the employee, or from refusing to hire the job applicant."
Based on Respondent's failure to submit to a district ordered drug test, he committed an act of gross insubordination pursuant to Florida Administrative Code Rule 6B-4.009(4). Pursuant to Section 112.0455, Florida Statutes, Petitioner is not barred from discharging Respondent from his employment for failure to submit to the drug test. Accordingly, his failure to submit to the drug test violated School Board Policy 4.70 and constitutes just cause for disciplinary action up to and including termination.
Pursuant to Subsection 1001.43(1)(a), Florida Statutes, Petitioner has prohibited the possession of weapons and drugs on school property. The Employee Handbook for the School District of Lee School, page 12, contains the following statement implementing Subsection 1001.32(1)(a), Florida Statutes, Weapons or Firearms on School Property, "Florida Statutes support district procedures stating that persons shall
not possess any firearm, electric weapon or electric device, destructive device or other weapon on the property of any school, any school bus stop, any facility having
a school-sponsored activity, a district facility or any district property. . ."
Respondent admitted that he possessed a Swiss army pocket knife with a blade between two and two a-half inches on a district school bus that was under his control. Respondent's possession of the pocket knife on Petitioner's property is in violation of district procedures and Florida Statutes, and constitutes just cause for disciplinary action up to and including termination.
Respondent attempted to shift blame from himself for his violation of State Board rules, Florida Statutes, and district policies, procedures, and regulations by alleging that he did not receive union representation when requested. Pursuant to the rules governing such requests, known as Weingarten rights, Respondent was not entitled to representation during the search of the bus. Employees have Weingarten rights only during investigatory interviews. NLRB v. Weingarten, Inc.,
420 U.S. 251 (1975). Garrett's and de Leon's actions in the compound parking lot and subsequent search of the bus did not constitute an investigatory interview as defined by Weingarten.
The evidence indicates Respondent contacted the union when the parties arrived inside the compound's offices, which was prior to what could be considered an "investigatory interview" under Weingarten.
Additionally, Respondent attempted to deflect blame for his conduct by insinuating that Petitioner and, specifically, de Leon, were on some type of crusade or mission which resulted in a conspiracy to see him fired. Although Garrett and de Leon overreacted to the situation, this contention is not supported by the evidence. Respondent himself testified that he did not feel that Garrett, Shelton, Deberardis, Giles, or Deputy Kinsey were out to get him. The most basic element of a conspiracy, the necessity of two individuals to conspire is missing.
Respondent admitted that he committed battery on a school official; he admitted to possessing a weapon on Petitioner's property. He admitted that he saw the nurse from the drug testing company at the compound that morning; however, Respondent left the premises without submitting to Petitioner's ordered drug test. He attempted to verbally resign his employment, but then rescinded the resignation when a union official informed him that a verbal resignation was not sufficient.
As a result of the foregoing, Petitioner has established by a preponderance of the evidence that Respondent committed gross insubordination as defined by State Board rules, violated Florida Statutes, and district policies, procedures and regulations, and, therefore, the Petitioner has "just cause" to discipline Respondent for his conduct, up to and including termination.
Prior to the incident on November 3, 2005, Respondent has shown that he was a competent and reliable employee who should be suspended for his conduct, rather than terminated.
RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year.
FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996).
DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2006.
1/ Unless otherwise indicated, all references to the Florida Statutes shall be to the 2005 version.
Robert J. Coleman, Esquire Coleman & Coleman
Daniel J. Woodring, General Counsel Department of Education
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
Dr. James W. Browder, III, Superintendent Lee County School Board
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.
