The Issue Whether the Petitioner, Warren Hayward, Sr., should be disciplined as an employee of the School Board?
Findings Of Fact The Petitioner, Warren Hayward, Sr., began employment as a school bus driver with the School Board sometime in either 1980 or 1981. At all times pertinent to this proceeding, Mr. Hayward was a bus driver for the School Board. At the time that Mr. Hayward began his employment as a bus driver with the School Board, he was given a copy of the School Bus Driver's Handbook by Mr. David Conrad Meyer, the Supervisor Director of Transportation of the School Board. Mr. Meyer was Mr. Hayward's immediate supervisor. Mr. Meyer also Supervised the other seven school bus drivers who worked for the School Board. Mr. Meyer was responsible for evaluating the eight school bus drivers and insuring their compliance with the law concerning the operation of school buses. Mr. Meyer had driven a school bus from 1972 until 1979 and has been Director of Transportation since 1979. On the morning of December 4, 1985, Mr. Hayward stopped at one of the regular stops on his route along Bay City Road in Apalachicola, Franklin County, Florida. There was a dirt turn around road off of Bay City Road which Mr. Hayward drove the bus around and up to the pavement of Bay City Road where he stopped the bus to pick up students. After stopping the bus that morning, Allen Dempsey, Lloyd Alford and William Thomas Jenkins, who were all friends, entered the bus with a few other students. Allen and Lloyd were in the ninth grade and Billy was in the seventh grade at the time of the incident. They all attended Apalachicola High School. The last three students to enter the bus were Allen, followed by Lloyd and then Billy. Students had been directed in the past that the first five seats of the bus were to be used only by elementary school students. On occasion, other students were required to sit in the first five seats as a disciplinary precaution. Other than those exceptions, the older students, including Allen, Lloyd and Billy had been instructed not to sit in the first five seats of the bus. Upon entering the bus on December 4, 1985, Allen, Lloyd and Billy proceeded to the middle to rear portion of the bus. Before Allen or Billy could get into a seat, Mr. Hayward began moving the bus. Mr. Hayward started the bus without warning and without insuring that all of the students were in their seats. When the bus first moved it jerked. When the bus began to move, Billy fell backwards into the seat and hit his head against the inside of the outer wall on the side of the bus. Lloyd, who had taken the seat across the aisle from Billy and had witnessed Billy fall, asked him if he was okay. Billy said that he was a little dizzy. As a result of the fall, Billy eventually had a knot on the back of his head. Billy did not suffer an permanent injuries, however. After Billy told Lloyd that he was little dizzy, Lloyd stood up and yelled toward Mr. Hayward that "you are suppose to wait until we are seated before taking off--you made Billy fall and hurt himself" or words to that effect. In response to Lloyd's comment, Mr. Hayward stopped the bus, got up out of his seat and stood in the aisle next to his seat. Mr. Hayward replied, in effect, that "you could have used one of the first five seats; I only have to wait until you are past the first five seats." Mr. Hayward then sat down and proceeded on his route. At no time on December 4, 1985, did Mr. Hayward inquire about Billy's fall or go back to where Billy was seated to check on him. Nor did Mr. Hayward report the incident to Mr. Meyer or any other person. At the time of the incident there were approximately fifteen students on the bus. None of the students, including Billy, reported the incident of December 4, 1985, to anyone at school that day. On the evening of December 4, 1985, Billy reported the incident to his Mother when he arrived home. After inspecting the knot which had appeared on Billy's head, Billy's parents, Lloyd and Billy went to the home of the principal of Apalachicola High School, Mr. Fox, and reported the incident. Mr. Fox sent the Jenkins family and Lloyd to see Ms. Gloria Tucker, the Franklin County Superintendent of Schools. Ms. Tucker met with them and observed the knot on the back of Billy's head. Ms. Tucker told Billy's parents that, if they wished to make a complaint, they would have to do so in writing the next morning. She also told them that she would contact Mr. Meyer and inform him that they wanted to make a complaint. After the Jenkins family and Lloyd departed, Ms. Tucker called Mr. Meyer and reported the incident to him. Mr. Meyer had not been told of the incident until this time. She directed Mr. Meyer to take the statements of the Jenkins family and the other students and to look into the matter. On the morning of December 5, 1985, Mr. Fox asked Allen, Lloyd, Billy and Matthew Cramer to write a statement describing the incident of the day before. Matthew Cramer was a student who was already on the bus on December 4, 1985, when Billy entered the bus. Matthew witnessed the incident of December 4, 1985. All of the students and Billy's parents filed statements. Because the statements were given on December 5, 1985 all of the students, except Billy, dated their reports as of that date. Billy dated his statement December 4, 1985, the date of the incident as opposed to the date he made the statement. At some point shortly after the incident, Billy was seen by a physician and his head was x-rayed. Mr. Meyer sent a letter dated December 9, 1985, to Mr. Hayward informing him that a complaint concerning the December 4, 1985, incident had been received and that it would be reported to the School Board at the regularly scheduled meeting on December 11, 1985. A copy of the written statements made by the students and Billy's parents was attached to the letter. Mr. Hayward, who received the letter and statements, was also told that he could respond if he wished. No response to this letter or the complaint was made by Mr. Hayward at that time. Billy's parents and other parents attended the School Board meeting on December 11, 1985. Because of concerns expressed by the parents for the safety of students riding Mr. Hayward's bus and concern for Mr. Hayward's safety, Ms. Tucker directed Mr. Meyer to ride with Mr. Hayward on his bus route. By letter dated December 12, 1985, Ms. Tucker informed Mr. Hayward that the Board had authorized her to commission an investigation concerning the incident of December 4, 1985, and other alleged incidents, and that J. Patrick Floyd, Esquire, Ms. Tucker's attorney, would conduct the investigation. Ms. Tucker also informed Mr. Hayward that the School Board had Suspended him with pay until the January, 1986, meeting of the School Board. Mr. Floyd conducted an investigation of the December 4, 1985, incident and other incidents, and submitted a written report to Ms. Tucker before the January 16, 1986, School Board meeting. At no time, however, did Mr. Floyd talk to Mr. Hayward. Ms. Tucker also discussed the report with Mr. Floyd. Based upon Mr. Floyd's report and based upon Ms. Tucker's understanding of other incidents involving Mr. Hayward's operation of his bus, Ms. Tucker recommended to the School Board that Mr. Hayward be terminated as an employee. Mr. Floyd's report was presented to the School Board at its January 16, 1986, meeting. A copy of the report was also provided to Mr. Hayward. By letter dated January 17, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Floyd's report and Ms. Tucker's recommendation had been presented to the School Board meeting of January 16, 1986, and that the School Board would consider the report and recommendation at its February 4, 1986, meeting. The letter indicated that Mr. Hayward could attend the meeting to discuss the report and to present witnesses and other evidence. By letter dated January 30, 1986, Mr. Hayward responded to the School Board through his counsel. In a memorandum dated February 3, 1986, Ms. Tucker informed the School Board that she could not attend the School Board meeting of February 4, 1986, and restated her recommendation that Mr. Hayward's employment be terminated. At its February 4, 1986, meeting, the School Board decided to terminate Mr. Hayward as an employee of the School Board. This decision was reached after allowing counsel for Mr. Hayward to respond to the allegations concerning Mr. Hayward's operation of his school bus. In a letter dated February 13, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Hayward had been terminated from employment by the School Board and informed them of Mr. Hayward's right to request an administrative hearing to contest the decision. In a letter dated February 28, 1986, Mr. Hayward requested an administrative hearing to contest his termination from employment by the School Board. Mr. Hayward had started his bus in motion before all students on the bus were seated on other occasions before the December 4, 1985, incident. Several other complaints concerning Mr. Hayward's operation of his bus had been received in writing by Mr. Meyer prior to the December 4, 1985, incident. Mr. Meyer only investigated reports if the complaining party made a written report of the incident. No written complaints concerning the operation of a bus have been received by Mr. Meyer concerning any other driver. Two written complaints have been received about another driver but those complaints did not concern the safe operation of a school bus. One complaint received by Mr. Meyer was from Ms. Donna Ward, a secretary at Chapman Elementary School. The complaint concerned an incident witnessed by Ms. Ward on May 26, 1981. Ms. Ward heard persistent horn blowing outside the school and went outside of the front of the school to investigate. It was raining and the circular drive used to pick up children by parents and the school bus drivers was full of waiting cars and buses. Mr. Hayward's bus was out on the street near the entrance of the driveway and Mr. Hayward was blowing the horn. The cars in front of him could not move, however. Nor was the area exclusively for use by the school buses. Mr. Hayward had been told to arrive early to avoid difficulty getting his bus to the pickup point within the driveway. He had also been told that the driveway at the school was available for use by parents and not just school buses. After blowing the horn for approximately four to five minutes, Mr. Hayward drove the bus to the exit of the driveway. Mr. Hayward then began to back the bus into the driveway in front of another bus parked at the curb. As he did so, students began exiting the building. Ms. Ward grabbed one student who ran behind Mr. Hayward's backing bus and pulled him back onto the sidewalk. No one was behind the bus giving Mr. Hayward directions as he backed the bus into a school grounds area congested with students and vehicles. Mr. Hayward's actions in backing the bus were not safe. At some point along Mr. Hayward's bus route along Bluff Road, the road crosses a railroad track. Mr. Hayward must cross the tracks once on his way out Bluff Road, turn around after picking up students and cross the tracks again on his way back. On one occasion, Mr. Hayward failed to stop at the crossing on his way out Bluff Road even though the warning lights were flashing. On his way back along Bluff Road, Mr. Hayward did stop the bus but failed to open the doors of the bus before crossing the tracks. On another occasion, Mr. Hayward slowed the bus at the railroad crossing but did not stop until he was already on or very near the tracks and observed a crane moving on the tracks. Mr. Hayward then slammed on the brakes and backed the bus up. The sudden stop of the bus caused an elementary student to hit and bloody her nose. The warning lights on Bluff Road which Mr. Hayward had to cross malfunctioned on a number of occasions. On one occasion, the light malfunctioned while Mr. Meyer was riding with Mr. Hayward. Mr. Hayward followed safe procedures on this occasion. Although the lights did malfunction on occasion, they also worked properly on other occasions. Mr. Hayward has received two driving citations and accumulated six points on his driving record. These citations were associated with his driving of his personal automobile and not a school bus. On May 4, 1983, Mr. Hayward was cited for faulty brakes and received two points. On this occasion, Mr. Hayward was unable to stop his car because his brakes failed. He drove into the wall of a store. Mr. Hayward had the brakes repaired approximately two weeks before this incident. On June 15, 1984, Mr. Hayward was cited for speeding and received four points. None of the other seven school bus drivers of the School Board have received driving citations during the past seven years. Except for a few students in Carrabelle, no black students ride the school bus in Franklin County. This is because, although black students make up approximately thirty-five percent of the student population, they all live within one mile of their schools and only students who live more than one mile from their schools are provided bus transportation. Therefore, the route driven by Mr. Hayward included stops for only white students. Mr. Hayward was the only black bus driver ever employed by the School Board. Mr. Hayward was the President of the N.A.A.C.P. for Franklin County during 1984, and had been active in community affairs. Among the activities Mr. Hayward was involved in were the adoption of single-member districts for the School Board. The School Board ultimately approved single-member districting for Franklin County. None of the members of the School Board who took part in the decision to terminate Mr. Hayward's employment with the School Board were elected to the School Board after single-member districting was adopted. When Mr. Hayward first applied for his position with the School Board, he was told by Mr. Meyer that there was no vacancy. Mr. Hayward contacted the Franklin County Superintendent of Schools, Ms. Tucker, about what Mr. Meyer told him. After Ms. Tucker spoke with Mr. Meyer, Mr. Meyer gave Mr. Hayward an application and ultimately was hired as a bus driver. On May 3, 1985, a meeting was held between Mr. Hayward, Ms. Tucker, Mr. Fox, Ms. Rose McCoy, the Principal of Chapman Elementary School and two others. Ms. Tucker scheduled the meeting because of problems voiced by Mr. Hayward concerning the treatment of discipline referrals by the Principals and complaints concerning Mr. Hayward's treatment of students and the two Principals. Mr. Hayward identified four students as discipline problems during this meeting. None of the students involved in the December 4, 1985, incident were named as problem students by Mr. Hayward. Mr. Fox agreed to administer corporal punishment to one of the students named by Mr. Hayward at the meeting and offered to allow Mr. Hayward to witness the punishment. Mr. Hayward declined. There is a relationship between a school bus driver's ability to manage students and the safe operation of a school bus. A driver must be able to manage students. The most important consideration for a school bus driver is the safety and health of the driver's student passengers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a Final Order terminating Mr. Hayward's employment as a school bus driver for the School Board. DONE and ENTERED this 18th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0970 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 1. The first sentence is a summary of testimony and not a proposed finding of fact. See 42 and 45. The last sentence is not relevant to this proceeding. The number of black drivers "currently" employed is not relevant to this proceeding. 3-4 3. 3, 33 and 41. The fourth sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Summary of testimony and not proposed findings of fact. See 4, 9, 16 and 19. The weight of the evidence proved that the injury took place on December 4, 1985. 14. The first sentence is not Supported by the weight of the evidence. 9 15-17 and 20. 10-11 Not supported by the weight of the evidence. 5. Matthew Cramer was not good friends with the other three individuals. Not Supported by the weight of the evidence. See 35-37. 14-17 Not relevant. Not supported by the weight of the evidence. 43. The evidence failed to prove that a consent decree was entered as a result of Mr. Hayward's effort. 44. The evidence failed to prove, however, that the fact contained in the first sentence had any effect on the action taken by the School Board against Mr. Hayward. The last sentence is not Supported by the weight of the evidence. Hereby accepted. The second sentence is a conclusion of law. 22-25 These proposed findings of fact are irrelevant or not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. See 34. The last sentence is not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. The first paragraph is not supported by the weight of the evidence. The last paragraph is irrelevant. Hereby accepted. 29 18. Irrelevant. Conclusion of law. 32-33 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1, 4-5 and 13. The date of the incident was December 4, 1985 and not December 4 or 5, 1985. The last sentence is not supported by the weight of the evidence. 2 6. 3 5 and 7-8. 4 8 and 9. The evidence failed to prove that medical attention was required. 5 10 and 11. 6 12. 7 7. 8 32. 9 7. 10 15-17. 11 18 and 20. 12 22 and 23. 13 23 and 25. 14 35 and 36. 15 46. 16 33. Mr. Meyer received two complaints about one other driver and not complaints about two other drivers. 17 3, 47 and 48. 18 2. 33, 38 and 40. The last sentence is true but not relevant because the evidence failed to prove why Mr. Hayward was placed on disciplinary probation. The next to the last sentence is not supported by the weight of the evidence. 34. The first paragraph was not supported by the weight of the evidence. The evidence concerning this paragraph was hearsay. The fourth paragraph is irrelevant. 24 and 28. The last sentence is not relevant. 22 28 and 29. 23 Hereby accepted. COPIES FURNISHED: Van P. Russell, Esquire Watkins and Russell 41 Commerce Street Apalachicola, Florida 32320 Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Gloria Tucker, Superintendent Franklin County School Board 155 Avenue E Apalachicola, Florida 32320 Martin B. Schapp Administrator 319 West Madison Street Room 3 Tallahassee, Florida 32399
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' Joint Pre-Hearing Stipulation, the following findings of fact are made: Petitioner was born on March 31, 1936, in Trinidad- Tobago. He migrated to the United States in 1974. In or around May 1993, when he was 57 years old, Petitioner applied for a position as a school bus driver with Respondent and was subsequently hired. Respondent is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, and for otherwise providing public instruction and related services, including transportation services, to school-aged children in the county. Respondent provides transportation services through its Transportation Department. Jerry Klein has headed the Transportation Department (as its Administrative Director) since 1993. The Transportation Department operates eight transportation centers throughout the county. Assigned to these eight transportation centers are a total of approximately 1,530 school bus drivers, who range in age from 22 to 77, with most being over 40. The current job description for the position of school bus driver has been in effect since March 9, 1999. It provides that school bus drivers must meet the following "physical requirements" and "minimum qualifications requirements": PHYSICAL REQUIREMENTS This is light work which requires the following physical activities: sitting, standing, walking, climbing, twisting, reaching, grasping, talking, hearing and visual acuity. Heavy lifting, pushing, and pulling may occasionally be required. Work is performed indoors and outdoors and worker is subject to noise, heat, fumes and vibration. MINIMUM QUALIFICATIONS REQUIREMENTS Must hold a valid Commercial Driver's License, have a minimum of five (5) years licensed driving experience, and have an excellent driving record. Must be able to pass the examinations and tests required by the State of Florida to obtain a Class B Commercial Driver's License with a Passenger Transport Endorsement, without air brake restriction. Must have an acceptable background check. Must be able to pass a prescribed reflex test, physical examination, and drug test. Must be able to deal with stressful situations on a frequent basis. Must have completed eighth grade and have a demonstrated ability to read, write, and understand written instructions in English. High school diploma or GED preferred. Must be able to pass the Basic School Bus Training Course given by Miami-Dade County Public Schools Department of Transportation in accordance with Rule 6A- 3.0141 of the State of Florida Board of Education.[2] Good knowledge of county geography. In 1993, in response to "several media reports" that some of its school bus drivers "were driving with suspended licenses and [had] other types of problems with their driving record[s]," Respondent developed and reduced to writing criteria to be used to screen the driving records of applicants for school bus driver positions (Screening Criteria), criteria which, in all material respects, it still uses today. The document in which these Screening Criteria are set forth is entitled, "Screening of Driving Records for Prospective School Bus Drivers for M-DCPS and Private Company Drivers," and it reads, in pertinent part, as follows: * * * Each individual's transcript of Driver Record will be screened in accordance with the guidelines and criteria established by this document. The entire driving record will be checked for purposes of determining an individual's acceptability or unacceptability to drive a school bus for M-DCPS. The screening process will be conducted prior to employment for M-DCPS drivers and annually as part of the annual re-certification for all drivers operating under contract to M-DCPS. Points will be assigned for each entry on the Transcript of Driver Record in accordance with the Appendix attached to this document, and Paragraph 2 above. Individuals will not be approved to drive a school bus for M-DCPS if they have: More than three (3) district assigned points during the past year More than six (6) points during the past three (3) years More than nine (9) points during the past five (5) years or More than twenty five (25) district assigned points total, on the entire record. * * * 6. The Administrative Director, Department of Transportation, or his designee, may make exception to the guidelines above, as circumstances warrant. Drivers who are disqualified under the above guidelines may further appeal the decision to the Chief Business Officer. * * * APPENDIX DRIVING VIOLATION POINTS ASSESSED BY DISTRICT VIOLATION POINTS SPEEDING UP TO 14 MPH OVER POSTED SPEED LIMIT 3 15 MPH OR MORE, OVER POSTED SPEED LIMIT 4 IN A SCHOOL ZONE 3 DRIVING TOO FAST FOR CONDITIONS 3 * * * FAILING TO COMPLY WITH STOP SIGN 3 FAILING TO COMPLY WITH TRAFFIC INSTRUCTION/DEVICE 3 * * * IMPROPER TURNING 3 * * * SEAT BELT VIOLATION . . . . 1 CARELESS OR IMPROPER DRIVING 3 * * * 22. AT-FAULT ACCIDENT 2 * * * Note: The district assesses points under this plan for all entries, regardless of conviction status or state disposition. Although Mr. Klein, as the Transportation Department's Administrative Director, has had the authority to "make exception[s]" to these Screening Criteria, he has never done so. Petitioner worked as an hourly school bus driver from June 10, 1993, until January 1994, when he became a full-time school bus driver, a position he held for approximately seven and a half years.3 During his employment as a school bus driver with Respondent, Petitioner was involved in several vehicular accidents while on duty in his school bus. After one such accident, which occurred on August 9, 1999, Petitioner was suspended without pay by Respondent for failing to report the accident.4 The suspension began February 10, 2000, and ended March 13, 2000. Petitioner's most recent accident as a school bus driver occurred March 26, 2001. Because the accident was deemed to have been "preventable," Petitioner was directed to complete retraining before resuming his school bus driver duties. Petitioner began his retraining on May 16, 2001. He was unable to successfully complete the retraining, although given adequate time and a fair opportunity to do so. On June 5, 2001, after Petitioner had had eight days of retraining5 (one in the classroom and seven on the road), Richard Rothberg, a Coordinator II for Operations and Training with Respondent, advised Petitioner that he "wasn't meeting the qualifications" to remain a school bus driver and asked him if he "would be willing to accept a demotion to a bus aide position so that he could retain his employment with [Respondent]." Mr. Rothberg told Petitioner that if he rejected the offer of a demotion, Petitioner's "case would be referred to the OPS [Office of Professional Standards]" and "he could be terminated." Petitioner's age played no role whatsoever in Mr. Rothberg's decision to end Petitioner's retraining and give him the choice to resign from his position as a school bus driver and take a bus aide position or face the possible termination of his employment with Respondent. Petitioner opted to resign from his school bus driver position and accept a position as a bus aide rather than risk not having any job with Respondent. In his letter of resignation, Petitioner wrote that he was resigning because he had "fail[ed] driver retraining." Respondent accepted Petitioner's resignation and appointed him to a bus aide position, effective June 15, 2001, as Petitioner had requested in his letter of resignation, a position in which he has remained. In or around May 2004, Petitioner, through a union representative, John Nochi, contacted Mr. Rothberg's successor, Chris Dowda, to express Petitioner's interest in becoming a school bus driver again. Mr. Nochi, on Petitioner's behalf, asked Mr. Dowda "to check [Petitioner's] driving record to see if he would be qualified to be a school bus driver." On May 14, 2004, Mr. Dowda obtained a print out of Petitioner's driving record (as maintained by the Florida Department of Highway Safety and Motor Vehicles) and "screened it." Applying the Screening Criteria, Mr. Dowda determined, correctly, that Petitioner had accumulated a total of more than 25 district-assigned points over the period of his licensure and that he therefore was not qualified to be a school bus driver. Mr. Dowda thereafter telephoned Mr. Nochi and "told him what the results were" of the screening. Mr. Dowda had "numerous [follow-up telephone] conversations" with Mr. Nochi, who had "a lot of questions" concerning the Screening Criteria. During one of these telephone conversations, which took place sometime prior to the end of 2004, Mr. Dowda, in attempting to explain why the Screening Criteria were developed, posited the following: If there [are] bus driver[s] with a lot of citations on their record and they go out and they get into an accident and there are students injured on the bus and . . . the media gets a hold of their driving record we will see on the news, the media holding [it] up and say[ing], "Look who's driving for ou[r] district right now." Unbeknownst to Mr. Dowda, Petitioner was present in the same room as Mr. Nochi and listening on a speakerphone to what Mr. Dowda was saying to Mr. Nochi. Mr. Nochi also contacted Mr. Klein and requested him to "review the driving record of [Petitioner] and see whether it would be acceptable to bring [Petitioner] back as a school bus driver." After conducting the requested review and determining that Petitioner had "a terrible driving record with more than 25 points assessed based on a long history of driving infractions," Mr. Klein informed Mr. Nochi that he "was not prepared to bring [Petitioner] back as a school bus driver because [Petitioner] didn't meet the minimum requirements of the [S]creening [C]riteria to become a school bus driver," adding that these requirements were not "waive[d] . . . for anybody."6 Effective 2005, all school bus drivers in the state needed to have (as they still do today) a school bus driver endorsement on their commercial driver's license. That year (2005), Petitioner went to Northwestern High School to take a written test, administered by Respondent, to obtain such an endorsement, but was told that he was not eligible to, and therefore could not, take the test. Petitioner subsequently took the test at the Department of Highway Safety and Motor Vehicles driver's license office in Pembroke Pines and received a passing score. On August 23, 2005, he was issued a commercial driver's license with a school bus driver endorsement. Petitioner subsequently went to Mr. Klein and showed him the newly issued license. Mr. Klein responded to being shown the license by repeating what he had told Mr. Nochi concerning Petitioner's having "too many points on his driving record" to be qualified under the Screening Criteria to become a school bus driver with Respondent. Although he has made inquiries about the possibility of his regaining a school bus driver position with Respondent, Petitioner has not submitted an official application for such a position at any time following his demotion. Under the hiring system Respondent has developed, the filing of an application is a prerequisite to becoming a school bus driver. On March 27, 2006, following his meeting with Mr. Klein, Petitioner filed the employment discrimination charge against Respondent which is the subject of the instant proceeding. The "particulars" of the charge were described by Petitioner as follows: I believe that I was discriminated against because of my age, 69. Chris Dadow [sic] made a derogatory comment about look who's driving our school buses. I was instructed to go and get a new license, and I complied. Mr. Chris Dadow [sic] refused to give me the driving test so I [could] become a School Bus Driver. I was ultimately denied the opportunity for employment. In fact, it was Petitioner's driving record, not his age, that prompted Mr. Dowda, as well as Mr. Klein, to take the positions they did, following Petitioner's demotion, regarding his ineligibility to fill any vacant school bus driver position. The comment made by Mr. Dowda about which Petitioner complained in his charge had nothing to do with Petitioner's, or anyone else's, age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of the unlawful employment practice alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of September, 2007.
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner for the position of Training and Safety Specialist in November 1998 and December 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner first began to work for Respondent as a substitute school bus driver in November 1988, approximately half-way through the 1987-88 school year. He worked as a substitute bus driver for the remainder of that school year and approximately half of the 1988-89 school year until he was hired as a full time bus driver in January 1989. He continued to work as bus driver through the 1993-94 school year, a total of six and a half school years. In August 1994 (the start of the 1994-95 school year), Petitioner was hired as a para-professional, i.e., teacher’s assistant, in Respondent's Adjudicative Youth Program. Petitioner is still employed in that position. The program serves students who have previously been in the juvenile justice system and are now being reintegrated into the school system. Petitioner does not hold a teacher’s certificate. However, Petitioner has gained some teaching experience in his current position because he occasionally serves as a substitute teacher. Petitioner received an associates degree in criminal justice in 1995. He has taken additional classes towards a bachelor's degree, in business administration and in exceptional student education. However, he is at least a semester short of a degree in either subject. After Petitioner left his position as a school bus driver in 1994, he did not maintain his certification by taking the required eight hours of annual “in service” training and by taking an annual physical as required by Rule 6A-3.0141(9), Florida Administrative Code. In November 1998, Respondent posted notice of a vacancy for the position of Transportation and Safety Specialist. The position was coming open because Joe Dixson, the Training and Safety Specialist at that time, was retiring. The Training and Safety Specialist supervises the bus driver trainers and is responsible for coordinating the initial and continuing "in service" training of the bus drivers. The Training and Safety Specialist also serves as a liaison with law enforcement officials in the event a school bus is involved in an accident and is responsible for maintaining the bus drivers' records, including the commercial drivers license (CDL) records, which were examined by the State annually. The minimum qualifications for the position, as set forth in the November 1998 job posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from an accredited college or university with a Bachelor’s degree or equivalent Vocational/Technical training or certification. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Florida Department of Education teacher [sic] certificate in school bus driver training. Physical Requirements: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. Seven individuals submitted applications for the position, including Petitioner and Sharon Arnold. Petitioner, Ms. Arnold, and all of the other applicants were interviewed on November 20, 1998. The interviews were conducted by a five-member committee who scored each applicant on various issues. Petitioner's average score (82 out of 120) was the lowest of all of the applicants interviewed. By contrast, Ms. Arnold's average score (100.4 out of 120) was the third highest.1 Neither Petitioner nor Ms. Arnold were qualified for the position because they did not have a bachelor's degree or "equivalent Vocational/Technical training or certification." The certification was explained at hearing to be a teaching certificate issued by the Department of Education (DOE) to a plumber, for example, to teach a vocational class in plumbing. This explanation is consistent with DOE's rules. See, e.g., Rule 6A-4.076, Florida Administrative Code. None of the other applicants had these minimum qualifications either. Accordingly, Mr. Murphy recommended to the School Board that the minimum qualifications be changed to eliminate the requirement for a bachelor’s degree and to require only an “ability to obtain” the DOE certificate in bus driver training. The School Board approved Mr. Murphy’s recommendation. The purpose of the change in the minimum qualifications was to increase the pool of eligible applicants for the position. The effect of the change was to make Petitioner, Ms. Arnold, and potentially others eligible for the position. In December 1998, Respondent re-posted the notice for the Transportation and Safety Specialist position. The minimum qualifications for the position, as set forth in the December 1998 posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from high school or completion of GED. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Ability to obtain a Florida Department of Education certificate in school bus driver training. Physical Requiriments: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. The major functions and illustrative duties of the position were not changed in the December 1998 posting. The salary grade (14) and salary range ($28,800–32,490) also remained the same. The salary for the Transportation and Safety Specialist position was based upon 12 months of work. Petitioner's salary in December 1998 was $17,518, but that was based upon a 194-day (i.e., school year) contract period. Seven individuals, including Petitioner and Ms. Arnold, applied for the position as re-advertised. Of the original applicants, Ms. Arnold and Petitioner were the only individuals who reapplied. Petitioner, Ms. Arnold, and the other applicants were interviewed on December 9, 1998. The applicants were interviewed by a four-member committee who scored each applicant in the same manner as before. Ms. Arnold received the highest average score from the interviewers, 107.5 out of 120. By contrast, Petitioner's average score was only 82.5 out of 120.2 Based upon the interviews, the committee recommended to Mr. Murphy that Ms. Arnold be hired for the position. Mr. Murphy accepted the committee’s recommendation and Ms. Arnold was hired as the Transportation and Safety Specialist starting in January 1999. She was hired at the minimum salary, and she is currently employed in that position. Ms. Arnold was first employed by Respondent in March 1987, as a substitute bus driver. She was hired as a full-time bus driver in May 1987, in advance of the 1987-88 school year. She continued to work as a bus driver until she was hired as Transportation and Safety Specialist, a total of 11 school years. In addition to her duties as a bus driver, Ms. Arnold served as a bus driver trainer since 1993. In that capacity, she provided on-road training to newly-hired and prospective bus drivers by observing their performance and helping them learn their routes. Ms. Arnold volunteered for these additional duties, although she was paid her hourly wage for conducting the training. She provided this training during the week between her morning and afternoon bus driving shifts, and sometimes on the weekends. Petitioner never served as a bus driver trainer. Ms. Arnold is certified by the State as a CDL trainer and examiner for Class A, B, and, C vehicles. As a result, she is authorized to teach and test persons applying for a CDL license to drive a school bus, tractor trailer, and other large vehicles. Ms. Arnold assisted the Department of Highway Safety and Motor Vehicles staff as a CDL examiner during the summers and received positive feedback on her work. Petitioner is not a certified CDL trainer or examiner. Ms. Arnold is also certified by DOE as a school bus driver trainer. She holds a Level 1 certification which allows her to administer classroom training, as well as a Level 2 certification which allows her to administer on-road training. Petitioner does not hold the DOE certifications, although he has the ability to obtain them. Ms. Arnold received the DOE certifications in October 1998 after a week-long seminar paid for by Respondent. Ms. Arnold was recommended for the seminar by Mr. Dixson and her area supervisor. Mr. Dixson recommended her because of the dedication and hard work that she exhibited when working as a bus driver trainer. Other drivers were recommended for the seminar as well; however, Petitioner was not one of those recommended. In addition to her formal duties as a school bus driver, Ms. Arnold volunteered at Frost Proof Elementary School prior to the start of each school year to help answer parents' questions about their child's school bus route. There is no evidence to support Petitioner's contention that the minorities are systematically overlooked for professional positions in Respondent's transportation department. To the contrary, the evidence shows that since 1993 when Mr. Murphy was hired as the administrator responsible for the transportation department, minority employment in advanced positions has increased significantly, from zero to six (out of 18) bus driver trainers and from zero to six (out of 27) professional staff.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner’s charge of discrimination. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 14th day of May, 2002.
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
The Issue Whether just cause exists to terminate Ms. Ivey from her employment with the Pinellas County School Board.
Findings Of Fact In 2005, Ms. Ivey was hired by the School Board to work as a school bus driver (bus driver). The position of school bus driver is covered by the 2012-2015 Collective Bargaining Agreement between the School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). One of the many requirements to operate a Pinellas County school bus is to undergo a medical/physical examination every year. Among the physical requirements, bus drivers are to maintain at least 20/40 vision in each eye (with or without corrective lenses). On Wednesday, January 23, 2013, Ms. Ivey underwent her yearly physical examination (exam). As a result of this exam, Ms. Ivey's "Work Status" was "PE on hold," meaning Ms. Ivey was not able to work as a bus driver until some corrective measures involving her eyesight were obtained. Ms. Ivey completed her morning bus routes prior to her exam on January 23. After her exam, Ms. Ivey called in sick and did not complete her afternoon school bus routes. On January 24, Ms. Ivey completed both her morning and afternoon bus routes without incident. However, she took sick leave for the remainder of January 2013 (five work days). Ms. Ivey's first day back from her sick leave was February 4, 2013. Each school bus is equipped with a global positioning system (GPS) monitoring device. Once the school bus is turned on the GPS automatically records the school bus position every 30 seconds. The GPS also records other activities that the school bus performs, e.g., when the amber caution lights are turned on or off, when the red stop lights are turned on or off, when the entrance door opens or closes, etc. Because of the cost of fuel, the School Board's policy is that no school bus idles for more than five minutes. If a bus must idle for more than five minutes, the bus driver is required to turn off the bus until it needs to move. Each school bus is required to stop at each assigned bus stop whether or not a student is present. This is to maintain the published schedule for subsequent school bus riders. Each school bus is also equipped with a two-way radio for constant communication with Petitioner's transportation dispatchers. In the event of an incident (or accident), there is an additional emergency channel for use by the dispatcher and the affected school bus driver. Prior to each school year, school bus drivers are provided training in how to handle an incident (or accident). When an incident occurs, the driver is to immediately contact the transportation dispatcher, remain at the scene of the incident, ensure the safety of the students, and cooperate fully with the investigation. The bus driver is to complete an incident report and turn it in to the transportation division before the end of the incident day. The school bus that Ms. Ivey drove on February 4, 2013, was equipped with the two-way radio and the GPS. Ms. Ivey's published/authorized school bus route (for the middle school pick-up) started at 8:15 a.m. each morning when she was to pick up her riding assistant, Courtney McClendon,3/ at 102nd Avenue and Seminole Boulevard. This stop was in a large parking lot, close to a Little Caesar's restaurant (restaurant). The second bus stop, where the first student was to be picked up, was located at 97th Street North and Lake Seminole Drive East (corner location). Without the School Board's permission or authorization, Ms. Ivey unilaterally changed her school bus route to begin with the student pick-up at the corner location. On February 4, Ms. Ivey began her middle school bus route at the corner location. According to the GPS, Ms. Ivey entered the corner location neighborhood at 8:32 a.m., and could not have been at the designated corner location bus stop at 8:18 a.m. The student rider was not at the corner location when the school bus arrived. There was no indication, via the GPS, that either the amber caution or red stop lights were activated for this stop, or that the entrance door opened or closed to allow a student to enter the bus. Ms. Ivey turned the school bus onto 97th Street and stopped at the red light at 102nd Avenue (stop light corner). As Ms. Ivey was looking left (in order to turn right), she heard a knock on the school bus door, but did not see the student. Ms. Ivey completed the right-turn onto 102nd Avenue West and then, in her right rear-view mirror noticed a student falling down. Ms. Ivey did not immediately stop the school bus, but drove to the restaurant approximately two minutes away. There, Ms. Ivey turned on her amber lights and opened the door for Ms. McClendon to board the school bus. While at the restaurant, Ms. Ivey radioed Petitioner's transportation dispatcher that she might have hit a student. Ms. Ivey left the restaurant and drove back to the corner location. Despite having a two-way radio on board the school bus and repeated attempts by the dispatcher to contact her, Ms. Ivey and the dispatcher failed to communicate again for over 45 minutes. Upon notification of the incident, the transportation dispatcher switched to the emergency frequency; however, Ms. Ivey stayed on the regular two-way radio frequency. Two transportation supervisors were immediately dispatched to investigate the incident at the restaurant, as this was the location where the incident was reported. Once they arrived, the supervisors were unable to locate the school bus, Ms. Ivey, or Ms. McClendon (the trio) at or near the restaurant. In an effort to locate the trio, the supervisors traveled to several more school bus stops, but only found students waiting for the school bus.4/ After searching for over 45 minutes, the supervisors finally located the trio at the corner location. At that time the transportation supervisors determined that the stop light corner location was where the incident actually occurred. One week after the incident, on February 11, Ms. Ivey completed and turned in the "DRIVER'S REPORT OF INCIDENT." Petitioner's field operations supervisor, Ms. Cross had to make repeated requests to Ms. Ivey to get her to turn in the report. On three separate occasions, Ms. Ivey was noticed to appear at the Office of Professional Standards to answer questions regarding the January medical issue and the February 4th incident. At the meeting on February 20, 2013, Ms. Ivey refused to answer questions about either matter. During the second meeting on February 28, shortly after the meeting began, Ms. Ivey asked to use the restroom, left the room, and never returned to complete the meeting. Although she was noticed for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey did not arrive for that meeting until after 3:00 p.m. During this third meeting, Ms. Ivey again refused to answer questions about either matter. Ms. Ivey's employment disciplinary history with the School Board is as follows: 02/08/10 Ms. Ivey received a "Conference Summary" for failing to correct performance deficiencies; 02/18/10 Ms. Ivey received a Conference Summary" for failing to comply with board policy, state law, or appropriate contractual agreement; 10/20/11 Ms. Ivey received a "Caution" for failing to comply with board policy, state law, or the appropriate contractual agreement and misconduct; 05/23/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; 12/15/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; and 02/20/13 Ms. Ivey received a "Conference Summary" for failing to perform the duties of the position and failing to correct performance deficiencies. Despite repeated opportunities to provide her version of the events, Ms. Ivey declined to present her case in a manner that would warrant serious consideration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner terminate Ms. Ivey's employment as a school bus driver as a consequence of her repeated violations of School Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Ms. Ivey's termination from employment as a school bus driver. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 20th day of August, 2013.
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 14th day of June, 2007.
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2011.
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
