A final hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (DOAH) on April 8, 2010, in Ft. Myers,
Florida.
Whether Petitioner has “just cause” to terminate Respondent’s employment as a bus operator due to incompetency and/or misconduct, for violation of Subsection 1012.33(1)(a),
Florida Statutes; and for violations of School Board Policies 5.02, 5.03, and/or 5.29.
On November 16, 2009, a Petition for Termination of Employment regarding Respondent was filed with the School Board of Lee County, which recommended that Respondent be suspended without pay. Respondent requested an administrative hearing and this matter was referred to DOAH on December 11, 2009. A Notice of Hearing was issued by DOAH on January 8, 2010, and the final hearing was conducted on April 8, 2010.
At the final hearing, Petitioner presented the testimony of seven witnesses: Dr. Gregory Adkins, Linda Leamy, Vonetta Vickers, Chrisaundra Phillips, Laura Spiro, Joe Howard and Robert Morgan. Respondent cross-examined each of Petitioner’s witnesses. Petitioner’s Exhibits 1-16 were received into evidence. After being advised of his right to testify, and to call witnesses as part of his case-in-chief, Respondent elected not to testify or to call witnesses. However, Respondent did offer seven exhibits which were received into evidence. At the conclusion of the hearing, the parties agreed to file proposed recommended orders within 10 days of the filing of the transcript.
The Transcript was filed on April 30, 2010. Petitioner’s Proposed Recommended Order was timely filed. Respondent has not filed his proposals as of the date of this Recommended Order.
The School Board of Lee County, Florida (Petitioner) is the duly-authorized entity responsible for providing public education in Lee County, Florida.
Dennis Osterbrink (Respondent), has been employed with Petitioner since September 21, 2006. Respondent has maintained his qualifications and is currently assigned as a bus operator in Petitioner’s transportation department.
Respondent’s employment is governed by the agreement between the Support Personnel Association of Lee County (SPALC) and Petitioner.
In October 2007, Respondent was operating a school bus route which transported students to and from Alva Elementary/Middle School. At that time it was reported to Transportation Supervisor Joe Howard that Respondent had claimed to a Sheriff’s deputy and other school board employees that the students on his bus were all “gang members” and were using gang signs and drugs. Following an investigation into the incident, Respondent was removed from the Alva Elementary/Middle School route for the remainder of the 2007-2008 school year.
Respondent was then placed on a route driving students to and from East Lee County High School (ELCHS).
In the Fall of 2008, Respondent, while assigned an ELCHS route, was making disparaging remarks about the students on his route. Respondent was counseled by Joe Howard about the comments he was making concerning the students. He was also counseled about an incident where he initiated his route too early and, as a result, only picked up four students, when the route typically had in excess of 30 students.
Following the incidents involving the students from ELCHS, in early October 2008, Respondent went into the office of Robert Morgan, Director of Transportation East and alleged that Joe Howard, Respondent’s immediate supervisor and an African- American, was a “cell leader” of the “Black Panthers” political organization, and that he was recruiting students on his bus and in the school to plan a revolution. Respondent brought Morgan to Howard’s work space and showed him a picture of a black panther, that Howard had leaning against his cubical.
Respondent offered this example as evidence of Howard’s affiliation with the Black Panthers. Respondent insisted to Morgan that the School District should contact the Federal Bureau of Investigation (FBI) and Homeland Security regarding Howard because he was collecting money from students as a “cell
leader” of the Black Panthers, and was a danger to the community.
Examination of the photograph revealed that the panther was shown in its natural habitat, with no indications of a political or any other message or insignia on it. Respondent offered no other proof to support his allegations. As a result of Respondent’s unsupported allegations, Respondent was removed from the East Lee County route, from under the supervision of Howard, and also from the Buckingham Compound and placed at the Six Mile Cypress Transportation compound.
Howard’s testimony is credible that the picture of the panther in his office had no meaning, other than possibly as a school mascot. In addition, it is found that Howard is not a security risk to the School District or to the community. This is particularly the case since Howard served 21 years in the military and was honorably discharged and has worked more than
18 years for Petitioner as an exemplary employee.
On March 30, 2009, Respondent was involved in a minor traffic mishap in the parking lot of the Six Mile Cypress Transportation compound with Linda Leamy, a fellow bus operator. Leamy is an African-American. After work, while backing out of a parking space, Respondent backed into Leamy’s car as it was passing by Respondent’s parking spot. Respondent’s vehicle struck the driver’s side rear door of her car. Leamy testified
that she has been a bus operator for nine years and up until March 30, 2009, had never had dealings with Respondent.
Following the collision, Leamy got out of her car to check the damage and to check to see if Respondent was injured or not. Respondent immediately began to disparage her by calling her a “stupid idiot.” Respondent used the term “bitches,” which was directed towards Leamy as he yelled at her. A crowd began to gather at the scene of the collision because Respondent was raising his voice. At that time, Leamy called dispatch and a supervisor came and escorted Respondent away from the scene.
On May 15, 2009, Respondent was in the driver’s lounge at the Six Mile Cypress Transportation compound, and as he walked by a group of co-workers, he thought he heard another co- worker, Chrishaundra Phillips, say something derogatory directed towards him. Phillips is also African-American. Leamy was seated at a table nearby but was not involved. Respondent approached Phillips and said, “I know what you said.”
Respondent then became irate, and slammed his hand on the table where Leamy was seated, and stated to her, “We can take care of this right now, let’s take it outside.” Respondent then stated, “I will defend myself against you people . . . .” Leamy stood up and asked everyone to witness Respondent’s actions.
Respondent then stormed toward the exit door, which was not
blocked, but yelled at another co-worker Vonetta Vickers, also an African-American, to “get out of my fucking way.” Respondent then called all the employees in the lounge a “bunch of gangsters” and stated, “Don’t push me or I’ll push back.”
Morgan was called to handle the situation.
Respondent’s irrational actions on May 15, 2009, were similar to his actions on March 30, 2009, and caused Leamy to be “scared,” and also to feel as though Respondent had it “out for her.”
The testimony by several witnesses is reliable that on May 15, 2009, Respondent, while engaged in the confrontation in the drivers lounge, was using several types of racial remarks, including, “You people need to go back to where you came from, back to the housing projects; what are you going to do, get your gangs to beat me up?” Respondent also used the phrase, “all you black people” and the word “nigger” during his tirade.
On August 10, 2009, while under suspension, Respondent was permitted to engage in bidding for a route for the 2009-2010 school year. While attending the bidding session, at Dunbar High School, Respondent informed Morgan that while walking through the parking lot, two black males drove passed him in a car, smoking cigars and made a shooting gesture towards him. When Morgan checked on the two students, he discovered that they were band members who were on campus as members of the marching
band. There was no evidence presented to substantiate Respondent’s claims that they had threatened him.
Respondent’s bizarre and racially motivated behavior continued. In late September 2009, Respondent filed a petition in the Circuit Court seeking a restraining order against both Leamy and Howard. Respondent alleged that Leamy tampered with his mail box; that she was in a gang; and that she was in the Black Panthers organization and had showed him some kind of weapon during the bidding. Respondent alleged that Howard threatened him in a parking lot; that he would have Respondent shot to death by two individuals; that his mailbox was tampered with; and that Howard was stalking him and was having others under his control stalk him. Both petitions were dismissed by the court.
At a predetermination conference held on October 14, 2009, Respondent indicated that he was being terrorized by African-Americans and that Petitioner and its staff were complicit in this terrorism. He requested that Petitioner report all of the activities that he had alleged in the past to the United States Department of Homeland Security and the FBI. Respondent indicated that he was undergoing psychological and psychiatric counseling because of all of the “racial issues” he was dealing with, but failed to offer specifics regarding such treatment.
Dr. Gregory Adkins, Chief Human Resources Officer, testified that Respondent’s testimony at the predetermination conference was “quite alarming.” He concluded that Respondent was not being specifically targeted by anyone and that Respondent was making “outlandish claims” that racism somehow runs through everything. Dr. Adkins stated that he questioned Respondent’s mental stability.
Respondent was rated as effective in his annual performance assessment at the end of the school years 2006-2007, 2007-2008, and 2008-2009. Respondent was recommended for retention in his position, although two of his routing supervisors expressed concern about his communication skills with co-workers.
The testimony is clear that Respondent is displaying irrational, paranoid behaviors while on the job, and should not be around students. It is apparent that Respondent cannot effectively supervise students while they are under his care on a school bus. Respondent has a severe problem coping or interacting with ethnically diverse people, which is characterized by his paranoid behavior, as outlined by the incidents highlighted above in this case.
Respondent was thoroughly advised of his right to present testimony in his own defense, but he declined to testify
in his own behalf. In addition, the testimony of the other witnesses presented by Petitioner was credible and persuasive.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of these proceedings, pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes (2009).1
As a bus operator, Respondent is an “educational support employee” as defined by Subsections 1012.40(1)(a), and 1012.01(6)(d), Florida Statutes.
The Superintendent has the authority to recommend to the School Board 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 educational support employees without pay.
§§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.
An educational support employee can be terminated only for the reasons set forth in the collective bargaining agreement which governs these employees. § 1012.40(2)(b), Fla. Stat. Provision 7.10 of the SPALC Agreement provides that “any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion, or termination shall be for just cause.”
“Just cause” is not defined in the SPALC agreement, nor does the agreement provide for a progressive discipline plan. The School Board has construed just cause for the purposes of discipline pursuant to the SPALC Agreement in the same manner as that phrase is used in Section 1012.33, Florida Statutes, relating to instructional staff. See Lee County School Board v. Simmons, Case No. 03-1498 (DOAH July 2003) (adopted in toto by Final Order, August 2003). See also Lee County School Board v. Kehn, Case No. 04-1912 (DOAH February 2005) (adopted in toto by Final Order March 2005).
Section 1012.33, Florida Statutes, provides in pertinent part:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination . . . .
The School Board 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).
Petitioner has clearly established by a preponderance of the evidence that Respondent’s irrational behavior on several occasions during the period from October 2007 through October 2009 has demonstrated that he is incompetent and lacks the capacity to serve Petitioner reliably and competently as a bus operator.
Further, Respondent’s actions constitute misconduct in violation of School Board Policy 5.02, Professional Standards, which requires dedication to high ethical standards; commitment to diversity and equality and responsiveness; and service to the school community.
Prior cases before DOAH involving school boards have held that the boards can construe by implication, regulations applicable on their faces to instructional personnel, to apply to educational support employees. Those holdings were based on a finding that the employees in question were educational support employees as defined in Subsection 1012.40(1)(a), Florida Statutes. Lee County Board v. Strawder, Case No.
08-5085 (DOAH April 2009) (adopted in toto) (educational support employee held to standards applicable to instructional personnel “to the extent they are applicable”). See also Lee County School Board v. Balough, Case No. 07-5130 (DOAH March 2008) (adopted in toto) (bus operator); Lee County School Board v.
Denson, Case No. 06-4995 (DOAH April 2007) (adopted in toto) (lawn maintenance worker).
However, unlike the definition in Subsection 1012.40(1)(a), Florida Statutes, the definition of “educational support employee” in Subsection 1012.01(6)(d), Florida Statutes, includes no instructional personnel, certified or non-certified. The non-certified instructional jobs referenced in Subsection
1012.40(1)(a), Florida Statutes, are included in Subsection 1012.01(2)(e), Florida Statutes, a subsection distinct from the definition of educational support employees in Subsection 1012.01(6)(c), Florida Statutes. Accordingly, any statute, regulation or rule that by its terms applies to instructional personnel does not apply to Respondent.
However, Respondent’s actions violate School Board Policy 5.29, Complaints Relating to Employees, which requires that all employees exemplify conduct that is lawful and professional. Respondent’s conduct is unbecoming of a School Board employee and has impaired his effectiveness as a District employee.
Petitioner has established by a preponderance of the evidence that Respondent’s conduct constituted just cause for his termination from employment.
RECOMMENDED that the School Board of Lee County, enter a final order holding that just cause exists for termination of the employment of Respondent for violation of School Board Policies 5.02(2), (4) and 5.29(1); and that Respondent should be dismissed from his position as a bus operator with the School District of Lee County.
DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
1/ All references to Florida Statutes are to Florida Statutes (2009), unless otherwise indicated.
Ft. Myers, Florida 33966-1012
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith Commissioner of Education Department of Education
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.
