The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN 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 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.
Findings Of Fact Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses." Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment contract between the parties also requires Respondent to abide by all state and local laws and rules. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus, while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.
Recommendation It is RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1997. COPIES FURNISHED: John M. Hament Kevin J. Hubbart Kunkel Miller and Hament 1800 Second Street, Suite 970 Sarasota, Florida 34236 Harry A. Blair Harry A. Blair, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 Jack Taylor, Acting Superintendent Lee County Public Schools 2055 Central Avenue Fort Myers, Florida 33901-3988
The Issue The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
Findings Of Fact Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff. For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years, Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints. In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school. In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began videotaping the director from the street to document what Respondent viewed as illegal behavior. The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school. However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds. Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian. Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information. Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands. While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids, who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year. The problem with the school bus driver began in 2002. Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus. Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored by the superintendent, Respondent contacted a school board member and asked for a meeting. Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation. The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children. After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop cutting through the occupied classroom--a directive that Respondent repeatedly ignored. Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington. On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting. The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations. Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them. Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial. Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem. By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70. By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment. Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004. COPIES FURNISHED: John Padget, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott E. Siverson Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Scott C. Black Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Diane Scott Post Office Box 501586 Marathon, Florida 33050
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
