The Issue The issue presented in Case No. 92-2911 is whether Respondent is guilty of the allegations contained within the Notice of Specific Charges filed against him, and, if so, whether his employment with the School Board of Dade County, Florida, should be terminated. The issue presented in Case No. 92-7414 is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action, if any, should be taken against his licensure as a teacher in the State of Florida.
Findings Of Fact Respondent holds Florida teaching certificate number 451673, covering the areas of driver education, reading, and physical education. His teaching certificate is valid through June 30, 1999. At all times relevant hereto, Respondent has been employed by Petitioner School Board of Dade County, Florida, as a teacher at Miami Killian Senior High School, pursuant to a professional service contract. During the 1991-92 school year Respondent was employed as the department head of the driver education program at Killian. For that school year, it was determined that an additional driver education class would be offered after regular school hours, during the seventh period, through the adult education program at Killian. Anthony Pariso, who was the principal at Killian, wanted to offer that seventh-period driver education class to Respondent, an opportunity which would provide extra salary to Respondent. He discussed his desire with Patrick Snay who was then the assistant principal at Killian and who was also in charge of Killian's adult education program. Snay was strongly opposed to giving the seventh-period class to Respondent because Snay had problems in the past with Respondent maintaining accurate enrollment and attendance records in the adult education program. Pariso reminded Snay that Pariso was the boss. Because of Snay's concerns, Pariso and Snay met with Respondent. They advised Respondent that the class would be offered only if enough eligible students enrolled in the class since funding for the class (and Respondent's extra salary) was dependent upon a minimum of 24 sixteen-year-olds. Although the course itself was not new, the fact that it was being offered during the seventh period as part of the adult education (night school) program made it a pilot program, which would serve as a model for other high schools in Dade County. Therefore, it would be closely monitored, and it was important that all of the requirements of adult education be met. During that conference Pariso and Snay specifically went over the requirements of the course, even though Respondent was the driver education department head and quite familiar with the course requirements. They made it very clear to Respondent that he had to have 24 sixteen-year-olds enrolled before the course could be offered. He was given specific instructions in terms of how to enroll the students. In that conference Pariso and Snay specifically told Respondent the rules relating to driver education classes in the Dade County Public Schools. Specifically, driver education class cannot be repeated unless the student received a "D" or an "F" in the class and then only during summer school. The class cannot be repeated for credit or for insurance reasons. Because of the problem Snay had in the past with Respondent, Pariso and Snay made Respondent repeat to them the instructions regarding who would be eligible to take the new seventh-period class. Respondent also coached the baseball team at Killian. As part of his efforts to enroll students in the class, Respondent met with the baseball team. He told them that they were to enroll in his seventh-period driver education class. The baseball players attending the meeting told Respondent that they had already taken the class from him. Respondent specifically told them that it did not matter, that they were to sign up for his class, that they were not required to attend the class, and that he would give them credit and an "A" without them attending. He passed out forms for enrollment and told them to fill out those forms and to sign the name of one of their parents on the portion of the form that required the signature of a parent to give permission for the student to attend night school. Several of those students who did not complete the enrollment form when first directed to by Respondent were contacted by him at their homes. Respondent reminded at least one of them that Respondent was in charge of deciding who would play baseball, implying there would be repercussions if that student did not enroll in the class. Respondent did such a good job enrolling students that it was possible to offer a second class during the seventh period. Snay was opposed to giving Respondent the opportunity to teach the additional class. Vincent Kubicek, another teacher in the driver education department at Killian, was offered the second class. Pariso and Snay met with Respondent and Kubicek. They explained to Kubicek and reminded Respondent that the offering of the driver education class as part of the adult education program was a pilot program initiated by the Superintendent of the Dade County Public Schools and that Kubicek and Respondent would have to stay in strict compliance with attendance guidelines, with grading, and with all School Board policies. The requirements for eligibility to take the class were again explained. The two seventh-period driver education classes were combined into one large class, known as Group A and Group B. Both groups were taught at the same time. Kubicek taught the class lecture and driving range portions. Respondent was in charge of the on-street driving part of the class. Respondent, as the department head, was responsible for the entire driver education program. He was also responsible for enrolling students in the seventh-period driver education course and for making an accurate and official record of attendance. Kubicek took the daily attendance for his portion of the course from the grade and range cards which he created. He did not have access to the official driver education seventh period attendance sheet. Respondent had the official attendance sheet, and the official attendance report was signed by him. There were students enrolled in the seventh-period class who were on the official attendance sheet signed by Respondent who never attended the class and who were not eligible to take the class. When it was time to fill out the official grade sheets for the first 9-week grading period, Kubicek was responsible for completing them. For the first time in the years they had worked together, Respondent insisted on helping Kubicek average the grades. While they were doing that, Kubicek discovered that there were students on the official grade sheets who had never attended the class. Kubicek called that to Respondent's attention, and Respondent replied that he would take care of it. Respondent told Kubicek, however, to give "A"s and "B"s to the students who had never attended the class. Kubicek awarded grades to all the students on the grade sheet, as instructed by Respondent, Kubicek's department head. Kubicek then took the official grade sheets to assistant principal Snay and explained what had happened and what Respondent had instructed him to do. Snay reported Respondent's falsification of the official records to principal Pariso. Pariso and Snay confronted Respondent about enrolling students who were ineligible and about directing Kubicek to give them passing grades when they had not attended the course. Respondent admitted his actions, stating that he was simply trying to help the students. Pariso fired Respondent from the seventh-period driver education class and replaced him with another of Killian's driver education teachers Eric Fleming. Respondent intentionally failed to follow the direct and reasonable orders of his superiors for enrolling students in the driver education class. Those orders were given to Respondent on at least two occasions, and he had been required to repeat them to show that he understood them when they were given. Despite those clear orders from both Pariso and Snay, Respondent enrolled students in the after-school driver education course that he knew had already taken the course and passed it and who were, therefore, ineligible to take the course again. As a result of an anonymous phone call to the principal of Palmetto Adult Education Center regarding improprieties in Killian's after-school driver education course, Pariso initiated a personnel investigation. He told Respondent that an investigation was forthcoming. Respondent contacted the students affiliated with his baseball team who were ineligible but enrolled in the class to tell them that they would be questioned. He also told them to tell the investigator the same story, i.e., that they had enrolled but that they had dropped the course because they had a job or had other demands on their time during the seventh-period class. He also told them what had occurred during the class in order that they could answer any questions regarding the class itself. When the investigator interviewed the ineligible students, they gave the false statements that Respondent had told them to give. One student later went to the investigator and told him that they had all lied and told the investigator why. The students were interviewed a second time. During the second set of interviews, the ineligible students admitted that they had taken the class previously and had received passing grades, that Respondent had pressured them to enroll again, that they had forged their parents' signatures to the form as instructed by Respondent, that some had agreed to take the course based upon his offer to give them credit and an "A", and that Respondent specifically said they did not have to attend. Moreover, at least one of the students had been enrolled in the seventh-period class by Respondent without her knowledge. After the ineligible students admitted that they had provided false statements to the investigator during the first interviews and after they had provided truthful statements in the second set of interviews, Respondent contacted at least one of those students and attempted to pressure that student into retracting the second statement and returning to the original false statement. In approximately 1989 Respondent asked two Killian students to follow his ex-wife home from work so Respondent could find out where she lived. They did so, and Respondent paid them $20. He then asked them to damage his ex- wife's car, which they refused to do because they thought that part was too risky. In approximately October 1991 Respondent asked those same students who had by then graduated from Killian to follow Fleming and Kubicek, the two teachers teaching the seventh-period driver education class, home from work. He offered them $50 to "trash" Fleming's and Kubicek's cars. Although those former students did follow Fleming home and subsequently gave Fleming's address to Respondent, they did not follow Kubicek home and they refused to damage either Fleming's or Kubicek's cars. On December 20, 1991, Kubicek's car was deliberately scratched with a key or other sharp object in the faculty parking lot at Killian. On that day, Fleming and Respondent were together all morning except for one period of time which lasted a few minutes during which Respondent left the driver education portable and then returned holding his keys. After his return, it was discovered that Kubicek's car had been "keyed". Later that day, Greg Dunn, a math teacher at Killian, was talking to his students about honesty while he was teaching his sixth-period consumer math class. One of the students challenged Dunn, asking the teacher how he could talk about honesty when the student had seen a teacher "keying a car." Dunn asked that student if he would talk to him after class, and the student agreed. The student explained that he and another student were behind a row of trees next to the faculty parking lot while they were cutting classes that morning. They saw and heard a teacher scratching Kubicek's car. Dunn reported his conversation to principal Pariso, who contacted the special investigative unit of the Dade County Public Schools. The investigator interviewed those two students individually, and both students independently identified Respondent as the teacher who keyed Kubicek's car. Further, both students independently identified Respondent from a photo line-up even though the photograph of Respondent used in the line-up was taken from a old yearbook and showed Respondent at a time when he wore a mustache. During the 1988-89 school year, Respondent engaged in an inappropriate relationship with a minor female Killian student, which included sexual activity. That student's father met with Respondent and requested Respondent to terminate the relationship, unsuccessfully. The student's father subsequently scheduled a conference with principal Pariso and played a tape which the father had secretly made of a telephone conversation between his daughter and Respondent. It was clear to Pariso from the tape that Respondent and the student were engaging in a sexual relationship and that Respondent had ignored the father's request to terminate that relationship. Pariso confronted Respondent about the tape and the relationship. Respondent was visibly shaken and quite upset about the tape. At first, Respondent suggested that he would simply lie to the father about the contents of the tape. Thereafter, however, Respondent admitted the relationship and assured Pariso that he would terminate it. Pariso directed Respondent to stay completely away from that student. Respondent did not terminate the relationship as ordered to by principal Pariso. Respondent's inappropriate sexual relationship with the minor female student was well known among students and teachers at Killian. Respondent's effectiveness in the school system has been severely impaired.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A Final Order be entered by Petitioner Dade County School Board in DOAH Case No. 92-2911 terminating Respondent's employment and denying his claim for back pay from the date of his suspension, and A Final Order be entered by the Education Practices Commission in DOAH Case No. 92-7414 permanently revoking Respondent's teaching certificate. DONE and ENTERED this 24th day of August, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2911 AND 92-7414 Petitioner School Board's proposed findings of fact numbered 1, 3-31, 34-47, and 51 have been adopted either verbatim or in substance in this Recommended Order. Petitioner School Board's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner School Board's proposed findings of fact numbered 32, 33, and 49 have been rejected as being unnecessary to the issues involved herein. Petitioner School Board's proposed findings of fact numbered 48 and 50 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner School Board's proposed findings of fact numbered 52-56 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner Castor's proposed findings of fact numbered 1-6, 10-64, 68- 77, 81, 82, and 84-87 have been adopted either verbatim or in substance in this Recommended Order. Petitioner Castor's proposed finding of fact numbered 66 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner Castor's proposed findings of fact numbered 7-9, 65, 67, 83, 88, and 89 have been rejected as being unnecessary to the issues involved herein. Petitioner Castor's proposed findings of fact numbered 78-80 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Patricia D. Bass, Esquire Luis Garcia, Esquire 1501 North East 2nd Avenue Miami, Florida 33132 Robert J. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Mark H. Klein, Esquire Allison L. Nash, Esquire Grand Bay Plaza, Suite 606 2665 South Bayshore Drive Coconut Grove, Florida 33133
The Issue The issue to be determined in this case is whether the Department of Highway Safety and Motor Vehicles (“Petitioner”) may properly terminate its contract with Perotte Driving and Traffic School, Inc. (“Respondent”), on the basis of failure to comply with the provisions of the contract, pursuant to section 322.56(3)(f), Florida Statutes.
Findings Of Fact Petitioner is the State agency authorized to enter into contracts with driving schools to administer driving and skills portions of examinations for driver licenses, pursuant to section 322.56. Petitioner regulates third-party administrators for compliance with contract provisions in furtherance of Petitioner’s mission to ensure safe roads in the State of Florida. Section 322.56 authorizes Petitioner to contract with private sector entities to conduct services in the same manner Petitioner conducts services at both its driver license offices and tax collector offices. Respondent is a third-party administrator under contract with Petitioner to conduct Class E Knowledge Examinations for State of Florida driver licenses. Ms. Dume is employed as a Regulatory Program Specialist for Petitioner. Her duties include visiting third-party administrators and monitoring their activities to ensure that they are abiding by the terms of their contracts with Petitioner. Assistance by Misrepresentation On October 8, 2020, Ms. Dume was present at Respondent’s school conducting an on-site inspection. She left at 5:45 p.m., having been informed by Mr. Perotte that the school closed at 6:00 p.m. Ms. Dume returned to continue her inspection on October 9, 2020, arriving at 10:20 a.m. She monitored the school from the parking lot before entering at 11:20 a.m. Then, Ms. Dume observed Mr. Perotte entering information into his computer showing that a student had completed the four-hour Traffic Law Substance Abuse Education course (“TLSAE”). The TLSAE is a requirement to earn a Florida driver license. The course must be taken in one consecutive four-hour period. Ms. Dume obtained the certificate for TLSAE course completion for the student, which reflected a completion date of October 9, 2020. However, based on Ms. Dume’s credible testimony, it would have been impossible for the student to have completed the four-hour TLSAE course on the date that Mr. Perotte entered into the computer because Ms. Dume was present up until 15 minutes prior to the school closing and did not observe the student taking the course. Mr. Perotte’s claim that the student took the course after Ms. Dume left was not credible. His credibility was further diminished by his inconsistent and illogical testimony that he entered the erroneous date of course completion by mistake. Although it was established that the same student did complete the TLSAE in 2013, that fact is immaterial to Mr. Perotte’s clear misrepresentation of the course completion date. Ensuring Only Applicants Allowed in Examination Area During Ms. Dume’s on-site inspection on October 8, 2020, she observed an applicant inside the testing room taking the knowledge exam with an instructor also inside the testing room. The instructor explained to Ms. Dume that she was inside the testing room to have the applicant sign paperwork, but Ms. Dume believed that the reason was pretextual based on her observations. On October 14, 2020, during another on-site inspection of Respondent, Ms. Dume observed Mr. Perotte inside the testing room standing over a customer who was sitting down taking the knowledge exam. Mr. Perotte testified that he was inside the testing room while a test was in progress to fix a technical issue with the computer. He also testified, however, that in the event of a technical issue, he would ask the examinee to exit the testing room while a staff member addressed the issue. Mr. Perotte’s testimony was unconvincing and inconsistent. Allowing the Department to Conduct Random Inspections Ms. Dume testified that for each of her on-site inspections that are relevant to this proceeding, on October 8, 9, and 14, 2020, she entered Respondent’s facility through an unlocked door. During her October 14, 2020, inspection, Ms. Dume observed that there were a number of customers present when she arrived at 12:30 p.m. A few minutes later, all of the customers were gone, and Mr. Perotte stopped others from entering the school. Ms. Dume believed that the customers were discouraged by Mr. Perotte from patronizing the school while Ms. Dume was present. Ms. Dume left around 2:30 p.m., due to the school being empty. The reasons why customers may have left or decided not to enter the school in Ms. Dume’s presence were based on assumptions and were not conclusively established.
Conclusions For Petitioner: Elana J. Jones, Esquire Roberto R. Castillo, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 For Respondent: Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found in violation of the contract, as alleged in the Complaint, and that the contract be terminated. DONE AND ENTERED this 22nd day of October, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2021. COPIES FURNISHED: Elana J. Jones, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 Joseph R. Gillespie, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432, MS02 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Terry L. Rhodes, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Christie S. Utt, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Findings Of Fact Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25). Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet. RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's disability.
Findings Of Fact Petitioner, Edward Rhoades, applied for employment as a commercial truck driver with Respondent in early February 2009. Respondent, Swift Transportation Co. of AZ, LLC. ("Swift"), is a nationwide truckload carrier, using over 14,000 trucks and employing approximately 18,000 drivers. Swift is an equal employment opportunity employer and has adopted written policies which prohibit discrimination based upon, among other things, disability. In the section of the Swift application relating to employment history, Petitioner wrote the following: "[H]aven't worked since 1985 due to injuries. Have doctor releases for injuries." Petitioner's injuries were sustained in 1976 when a log dropped on his back. Petitioner also has contracted Hepatitis C, although there is no evidence of record as to what disabilities, if any, have resulted from the disease. Notwithstanding the "injuries" listed on his application, at hearing Petitioner testified that the only disability he had at the time of filing his application with Swift was "a skip of the heart." Petitioner further testified that he did not have any physical limitations due to this condition. In December 2008, Petitioner successfully completed training to become a semi-tractor-trailer driver at the Truck Driver Institute, Inc. ("TDI"), located in Sanford, Florida. TDI assisted Petitioner in his efforts to find employment as a truck driver by faxing his application to Swift on or about February 1, 2009. Petitioner's faxed application was incomplete. Omitted were Petitioner's social security number, date of birth, employment declaration, references, and signature. Swift internally tracks the status of driver applications by the use of Lotus Notes software. February 10, 2009, entries made regarding Petitioner's application noted the absence of the personal information listed above. In addition, the notations "need proof of injury" and "faxed conditional pre- hire to TDI, Sanford" were entered in the Swift record. Although the exact date is not reflected in this record, sometime soon after the faxed submittal of Petitioner's paper application Petitioner decided to submit an on-line application to Swift using the Swift website. A copy of that application was not introduced into this record. However, when asked on the application to identify his goals, Petitioner testified that he wrote: "to get off disability and pay off my family loans." As reflected in the Swift Lotus Notes, on February 10, 2009, Swift faxed its standard "conditional pre-hire letter" to Petitioner via TDI. The letter declared in large bold font: "Congratulations, the student/driver listed below has been approved to join the Swift Team!" The letter further stated: "Swift Transportation Co., Inc. agrees to hire the above referenced student/driver subject to the following conditions:" Thereafter followed a list of 11 conditions prerequisite to hiring by Swift, one of which was "pass Swift Transportation's road test." Scott Maldonado, Swift's National Director of Recruiting and Training, testified that Swift had no record of Petitioner's on-line application. He noted that during the four to five months preceding the hearing Swift had received over 60,000 applications through its website. Unfortunately, when Petitioner submitted his application in early 2009, the national economy was in the throes of a serious recession, resulting in a significant decline in the need for commercial truck drivers. For example, in 2008, Swift hired 18,957 drivers, while in 2009, only 9,713 drivers were hired by Swift.1/ Consequently, Respondent was able to be much more selective in the drivers it chose to hire. Due to the location from which he applied, Petitioner would have been assigned to Respondent's Ocala facility. In February of 2009, Respondent hired only eleven drivers for placement in its Ocala terminal, and all of those drivers were graduates of Swift's driving academy located in Millington, Tennessee.2/ Swift's historical data has shown that drivers hired from one of its academies are safer drivers and have more of a long-term commitment to Swift. Because of this, Swift has a company-wide goal of hiring graduates strictly from one of its driving academies if at all possible. Unfortunately for graduates of other academies, such as TDI, Swift was in a position to selectively hire only Swift academy graduates in early 2009. When Petitioner attempted to arrange to take the Swift driving test (through his contacts at TDI) he was informed of the Swift hiring freeze on all non-Swift academy graduates. Accordingly, Petitioner was never offered an appointment to take the Swift driving test.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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, 2010.
Findings Of Fact At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated. DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1986.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by failing to promote Petitioner to a supervisory position.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was over the age of 40. Respondent, the Hillsborough County Tax Collector (Tax Collector), is an elected public officer in Hillsborough County, Florida, and is responsible for collecting certain taxes within that county. The Tax Collector's Office is divided into two main Divisions, the Tax and License Division and the Motor Vehicles Division. The work done by these two Divisions is different and the training and work experience for each Division are considered unique. The Tax and License Division collects taxes on both real and personal property and issues hunting, fishing and occupational licenses. The Motor Vehicle Division issues drivers licenses and motor vehicle tags and titles. Some of the Tax Collector's branch offices are full-service offices, which provide the services of both the Tax and License Division and the Motor Vehicle Division. Petitioner was hired by the Hillsborough County Tax Collector's Office as a Clerk III on March 4, 1994. At the time Petitioner was hired by the Tax Collector, she was 49 years of age. She resigned from her position as a Clerk III on March 17, 2000, when she took a lateral transfer to the Water Department. During the six years that Petitioner was employed by the Tax Collector's Office, she worked exclusively in the Tax and License Division. Petitioner was a "detailed oriented" person and did a good job as a Clerk III. There is no dispute that she performed well within her assigned Clerk III duties. After working for many years in the area of occupational and hunting licenses of the Tax and License Division, Petitioner's managers asked her to rotate into other areas of the Tax and License Division for cross-training. As part of this cross-training, Petitioner was reassigned to other areas within Tax and License Division. Petitioner did not like working in new areas and especially did not like working in the Real Estate Delinquent Tax Section. The reason was that she found it difficult to deal with taxpayers who were subject to losing their homes because they were unable to pay their taxes. Petitioner never worked in the Motor Vehicle Division of the Tax Collector's Office. After several years of working as a Clerk III, Petitioner applied for some promotional opportunities as a Clerk IV. At the time Petitioner was applying for promotion, the Clerk IV position was a first line supervisory position. Moreover, the incumbent Clerk IV had to take over for the supervisor or manager in his or her absence. Petitioner, like all other applicants for promotion, was given the opportunity to have an interview as it was the policy of the Tax Collector's Office to interview any candidate who desired an interview. Jackie Wilhelm, a General Manger in the Motor Vehicle Division, interviewed Petitioner in June or July of 1997 and, again, in March or April of 1998 for a Clerk IV position in the Motor Vehicle Division. Because Petitioner had worked for several years as a Clerk III in the Tax and License Division, she met the minimum requirements necessary for a Clerk IV position. However, both of the positions for which Petitioner was interviewed required Motor Vehicle Division work experience to be the best qualified person. Experience in the Motor Vehicle Division was important for an individual selected for a Clerk IV position in the Motor Vehicle Division because the person in that position was responsible for supervising the work of Clerk IIIs in that division. The most qualified applicant for the Clerk IV position in the Motor Vehicle Division would be a person who had first-hand knowledge and experience regarding the operations of the Motor Vehicle Division. During the above-referenced 1997 and 1998 interviews, Jackie Wilhelm asked Petitioner if she would be willing to take a lateral transfer to a Motor Vehicle position so that she could obtain motor vehicle experience. Petitioner declined both times. Sometime between September 1997 and March 1998, Petitioner spoke to Charlotte Luke, who was her senior manager in the Tax and License Division, about promotional opportunities. During the discussion, Petitioner and Ms. Luke discussed ways for Petitioner to exhibit behavior that would enhance her chances of getting promoted. Ms. Luke suggested that Petitioner do the following: show leadership characteristics; take initiative for changes to make work processes more efficient; accept responsibility for writing efficient procedures that affect the whole department; volunteer to take on tasks that needed to be performed; show confidence in her decision making by being more assertive; demonstrate problem-solving ability in the absence of her supervisor; show an ability to do multiple tasks at one time. Ms. Luke also encouraged Petitioner to attend a career management class and a communications skills class. After the discussion noted in the above paragraph, Ms. Luke asked Petitioner's immediate supervisors to be on the lookout for any indications that Petitioner was starting to demonstrate the characteristics she and Ms. Luke had discussed. Ms. Luke never got any positive reports that Petitioner was showing improvement in the areas suggested. Furthermore, Petitioner was not observed exhibiting any of these characteristics while working in the Tax Collector's Office. Petitioner filed a Charge of Discrimination on February 1, 2000, with the Equal Employment Opportunity Commission (EEOC) in which she claimed she was not promoted due to her age. After an investigation, the EEOC dismissed the charge. Petitioner then filed a Charge of Discrimination with the Commission on September 8, 2000, in which she claimed that she was not promoted due to her age. This charge was dismissed by the Commission on or about October 18, 2002. During the time period applicable to Petitioner's charges, 365 days prior to her earliest EEOC complaint of February 1, 2000, or February 1, 1999, there were several promotional opportunities in the Tax Collector's Office. Of the number of promotional opportunities available during that time, Petitioner applied for only four such positions. All the positions for which Petitioner applied were in the Motor Vehicle Division and required motor vehicle work experience to be the best qualified. The Motor Vehicle Division has roughly five times more supervisor-type positions (Clerk IV and above) than the Tax and License Division. One position for which Petitioner applied was a Motor Vehicle training supervisor position. In October 1999, Rosemary Johnson, Manager of Motor Vehicle Training, selected Marty Rodriguez for the Motor Vehicle training supervisor position. During the selection process for this position, Ms. Johnson and Barbara McCleary, Director of Motor Vehicles, interviewed Petitioner and 16 other individuals. Ms. Johnson and Ms. McCleary, individually and independently, rated each applicant for this position. In these rankings, Petitioner was not ranked as one of the top applicants by either Ms. Johnson or Ms. McCleary. The reason was that Petitioner had no experience working in the Motor Vehicle Division. At the time of this selection, Ms. Johnson did not know of any allegations of age discrimination and made her selection on the basis of the best qualified for this position. Petitioner also applied for two Motor Vehicle Clerk IV positions, both of which were filled in November 1999. These positions were assigned to the Palm River/Faulkenberg Office, a full-service office of the Tax Collector. Although this full- service office provided services of the Motor Vehicle Division and the Tax and License Division, the two Clerk IV positions for which Petitioner applied were in the Motor Vehicle Division. General Manager Parker interviewed Petitioner and during the interview noted that Petitioner did not have Motor Vehicle experience or experience with the Tax Collector's new computer system, which was used heavily in that office. Ms. Parker selected April Johnson and Michelle Williams-Nedd for the two Clerk IV positions in the Motor Vehicle Division that were described in paragraph 17. The reason Ms. Parker selected these applicants is that they both had extensive experience with Motor Vehicle type work. In fact, at the time these openings occurred, Ms. Williams-Nedd and Ms. April Johnson were working in the Motor Vehicle Division. Ms. Parker had personally worked with Ms. April Johnson and Ms. Williams-Nedd and she knew that both applicants had the ability and prior experience in the Motor Vehicle Division to perform the job of Clerk IV in that division. At the time Ms. April Johnson was promoted to the Clerk IV position, she was twenty-five years of age. No evidence was presented regarding the age of Ms. Williams-Nedd at the time she was promoted. In or about early 2000, Petitioner applied for a Motor Vehicle supervisor position in the South County Office. In February 2000, Tori Sydnor, General Manager of the South County Office, selected Juanita Gatica for the Motor Vehicle supervisor position. The reason Ms. Sydnor selected Ms. Gatica was that she knew of Ms. Gatica's work quality and prior experience working in the Motor Vehicle Division. Ms. Sydnor knew that Ms. Gatica had Motor Vehicle experience because she worked many years with Ms. Gatica in that division. Furthermore, Ms. Sydnor knew that experience in the Motor Vehicle Division was required to be the best qualified for the Motor Vehicle supervisor position. In or about the Fall of 1999, Petitioner voluntarily withdrew herself from consideration for a Clerk IV promotion in the Tax and License Division. In September 1999, Susan Lagore was selected to fill that position. Based on the evidence, it appears that during her employment with the Tax Collector, Petitioner has interviewed only once for a promotional opportunity in the Tax and License Division, although that is the Division where she had all her work experience. Despite her success in performing the duties required in the Clerk III position, Petitioner was not considered a good prospect for promotion. Petitioner was a "detailed-oriented" person with little grasp of, or concern for, the larger picture and mission of the Tax Collector's Office. While a Clerk III at the Tax Collector's Office, Petitioner did not exhibit overall confidence or initiative or tolerance for change in the work environment. Petitioner did not show any capacity for supervisory level problem-solving; she showed little confidence in decision-making; and she was very introverted to the point where her introversion would be a hindrance, limiting her ability to relate to subordinates and customers. Petitioner stated that she wanted to be promoted to Clerk IV. However, she did not take the steps to show she was best qualified for such a promotion. Petitioner did not perform very well during her interviews. Also, she failed to avail herself of the opportunity to increase her level of experience in the Tax Collector's Office. Specifically, Petitioner twice declined the opportunity for lateral transfer into the Motor Vehicle area. Such a transfer would have given her experience in the division of the Tax Collector's Office where most promotions and Clerk IV positions were found. Moreover, Petitioner did not demonstrate leadership ability and the ability or desire to direct the work of others. Finally, Petitioner tended to avoid all conflicts and, thus, would have found it difficult to resolve conflicts between employees or with citizens as a Clerk IV would be required to do when conflicts arose. Many workers within the Tax Collector's Office were hired and/or promoted after they turned 40 years of age. For example, Rosemary Johnson was 42 years of age when hired and was 52 years of age when she was promoted to training manager. Claudia Coleman was promoted to three supervisory positions after she was 51 years of age, with the last promotion to General Manager I occurring when she was 58 years of age. Other employees of the Tax Collector's Office who were promoted after the age of 40 included Ann Kemeny, who was promoted to supervisor when she was 53; Susan Lane, who was promoted to training manager when she was 47; and Loides Rodriquez, who was promoted to Clerk IV when she was 52.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 16th day of July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Roderick O. Ford, Esquire Law Offices of Roderick O. Ford, P.A. Post Office Box 17421 Tampa, Florida 33682 James J. Lynch, Esquire Hillsborough County Attorney's Office Post Office Box 1110 Tampa, Florida 33601 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Petitioner, Phillip McTaggart, is a white male who retired after more than 20 years in the United States Air Force (including the reserves), and 18 years with Delta Airlines. Respondent, Pensacola Bay Transportation Company, specializes in the transportation of people with special transportation needs, including the elderly, disabled, and economically disadvantaged. Respondent contracts with the Escambia Area Transit Service, the local coordination board of the Florida Commission for the Transportation Disadvantaged, to provide these services. Many of Respondent's customers are wheel-chair bound or otherwise need assistance with transportation. Respondent uses both automobiles and specially designed buses for the transportation of wheel-chair bound customers. Petitioner applied for a job with Respondent by filling out an application on January 20, 2009. His application did not specify for which position he was applying. Respondent had hired a white driver just days before Petitioner's application. Respondent hired three African- American drivers after Petitioner applied. Each of the hired drivers stated on their applications that they were applying for driver positions. The last driver hired by Respondent in 2009 was on April 13. All of the drivers hired after Petitioner applied had submitted their application before Petitioner applied. Each of the hired drivers' application reflected previous wages in line with wages paid to other drivers in the Pensacola area. Petitioner's application showed he had earned wages at his previous jobs that significantly exceeded the wages Respondent was paying its drivers. Petitioner testified that he either re-applied or updated his application for a driver position in May 2009, but Respondent has no record of the subsequent application. Petitioner contends, through the use of a vocational expert, that Respondent hires minority candidates for its driver workforce at a rate that far exceeds the demographics of the Pensacola area. Also, a large number of the drivers are minority women, who statistically receive lower wages than white male employees based upon national Department of Labor figures. Petitioner contends that he was discriminated against by being a white male with a history of receiving higher wages than the typical driver employed by Respondent. Some companies refuse to hire individuals they believe are overqualified for the position for which they apply. The reasons for this failure to hire the "overqualified" are that they command higher wages, as well as a general fear they will leave to seek higher-paying employment. Petitioner listed on his application his previous experience in the Air Force as an aircraft mechanic. He listed his previous experience with Delta Airlines as a customer service agent in public relations, baggage, and ticketing. Nowhere did Petitioner hint at previous experience as a driver. Petitioner's updated resume, which he testified he supplied to Respondent with his application failed to make mention of any professional driving experience. He testified at hearing, however, that when he went to update his application in May 2009, he told Respondent's personnel that he had driving experience from his time serving in the Air Force. Respondent is a unionized company that operates under a collective bargaining agreement (CBA). Its wages are set by the CBA. Petitioner's vocational expert was not aware of the company's union status when she performed her wage study for the Pensacola area. Respondent inherited many of its employees from a company it acquired in 2001. The company was required to keep these employees at the wages they were already receiving under the CBA. Respondent had never hired a driver with an employment background matching Petitioner's. Tammie Nelms, the human resources manager for Respondent, liked the fact that Petitioner had such a stable work history. She would have called him back had she known he was seeking a driver position. Although Respondent has a box full of driver applications (about 50 applied in 2009 alone), few whites apply for driver positions at Respondent's Pensacola location. The company has three white maintenance workers in the Pensacola location. White drivers more commonly apply at Respondent's Santa Rosa County location. Respondent has a policy of non-discrimination in the hiring of employees.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of June, 2010. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs & Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32501 Elizabeth Darby Rehm, Esquire The Kullman Firm Post Office Box 1287 Mobile, Alabama 36633 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Richard Tortora (Tortora), held pari-mutuel wagering occupational license number 0066650, as a thoroughbred trainer. Tortora has been licensed since 1979, and has not previously been the subject of a disciplinary proceeding. Tortora was a participating trainer during the 1956 thoroughbred meet at Calder Race Course, an association authorized to conduct thoroughbred racing in the State of Florida. On August 2, 1986, Tortora was the trainer of the horse "Chief Again," the winner of the fourth race at Calder Race Course that day. Immediately following the race, the Division, consistent with its standard practice, took a urine sample from "Chief Again" for analysis by the Division's laboratory. The parties have stipulated that the chain of custody of the urine sample was not breached, and that the urine sample was properly taken, packaged and delivered to the Division's laboratory for testing. The parties have further stipulated that a portion of the urine sample was delivered to Dr. Richard Sams, Equine Testing Laboratory, College of Veterinary Medicine, Ohio State University, Columbus, Ohio, for testing on behalf of Tortora, and that such sample was properly taken, packaged, and delivered. Upon analysis, the urin sample taken from "chief Again" proved positive for the presence of the drug butorphanol, a schedule 3 narcotic. Butorphanol is a potent analgesic, traditionally used to control the intestinal pain associated with equine colic. In therapeutic dosage, butorphanol renders the animal immobile, however, at low dosages it will act as a stimulant. In reaching the conclusion that "Chief Again" was shown to have raced with the narcotic butorphanol in his system, the evidence offered on behalf of Tortora, through Drs. Sams and Maylin, has not been overlooked. Such evidence failed, however to detract from the credible and compelling nature of the Division's proof. The Division's analysis was composed of sequential screening procedures designed to initially identify the presence of an unusual substance and ultimately identify the compound. Throughout the Division's initial procedures, the urine taken from "Chief Again" was consistently identified as containing an opiate with characteristics consistent with those of butorphanol. Ultimately the Division subjected the sample to gas chromatographic/mass spectral analysis. This refined analysis confirmed the presence of butorphonal. The consistency of the Division's findings at all levels of its testing provides compelling evidence that the urine sample taken from "Chief Again" did contain the narcotic butorphonal. Following the Division's testing, Tortora requested that it furnish the balance of the urine sample taken from "Chief Again", approximately 2om1, to Dr. Richard Sams for analysis. Dr. Sams subjected the sample to gas chromatographic/mass spectral analysis and found no evidence of butorphanol. While finding no evidence of butorphanol, Dr. Sams did not conclude that the sample did not contain the narcotic, but merely that he was unable to detect its presence. According to Dr. Sams, the limited volume of urine available for testing compromised his ability to detect the presence of butorphanol. He affirmatively concluded, however, that the Division's data was properly prepared and adequate to support a positive finding of butorphanol in the sample. Dr. Maylin's testimony was premised on a review of Dr. Sams' and the Division's written test reports, he undertook no independent analysis, and was not privy to any testimony offered at hearing. Dr. Maylin opined that if butorphanol were present Dr. Sams should have detected it and, based on certain assumptions, that the Division reported a false finding because of laboratory contamination. Dr. Maylin's opinions are rejected. Dr. Sams is familiar with the equipment and procedures he utilized. He of all people is most familiar with the capabilities and reliability of that analysis. Dr. Maylin's opinion that the analysis ran by Dr. Sams had more import than Dr. Sams ascribed to it is not credible. Dr. Maylin's opinion that the Division reported a false finding is likewise not credited. Dr. Maylin's opinion was predicated on the assumption that proper testing procedures were not followed. Dr. Maylin's assumptions were incorrect. While "Chief Again's" urine was found to test positive for butorphanol, Tortora denies any knowledge of how the narcotic could have been introduced into the horse's system. According to Tortora he was unfamiliar with this narcotic until these charges were brought, and "Chief Again" was not under any medical treatment. Tortora offered no evidence, however, of what provisions he took, if any, to supervise or otherwise protect "Chief Again's" integrity.
The Issue Whether Petitioner properly denied Respondent's application for the renewal of his Commercial Driving School License No. 1719, and Teaching Certificate No. 4531.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, Petitioner's proposed memorandum and the entire record compiled herein, the following relevant facts are found. 2/ Respondent, Joshua Logan, during times material, was the owner/operator of Logan's Streamline Driving School in West Palm Beach, Florida, beginning in 1970. (Tr. 52) Respondent's most recent Commercial Driving School License (No. 1719) and Teaching Certificate (No. 4531) both expired on June 1, 1981. (Tr. 6) On May 18, 1981, Respondent applied to the Department of Highway Safety and Motor Vehicles (herein Department) for renewal of the above referred license and Teaching Certificate. Prior thereto, on or about May 14, 1981, the Department, through its staff, had instructed Respondent that he should contact the Department's agent, J. F. Hayes, at the West Palm Beach Drivers' License office, to arrange for the inspection of his school facilities before his license and certificate could be renewed. On approximately June 1, 1981, Respondent, via a telephone communique with John F. Hayes, District Supervisor, Palm Beach District, Region IV, requested that his renewal applications be held in abeyance pending completion of remodeling of his school building. The Department, pursuant to that communique, held Respondent's renewal applications in abeyance and considered them to be incomplete. Respondent was not told by agents of Petitioner that he could continue to engage in the business of conducting a driving school when his license/certificate expired. The Department issued an order dated August 27, 1981, prohibiting the Respondent from operating as a commercial driving instructor since his school license and teaching certificate both expired on June 1, 1981. On September 29, 1981, Levi Dixon completed an application for a license to conduct a commercial driving school under the name Logan's Streamline Driving School. Attached to that application were receipts, lesson plan forms and other contractual agreements which had been previously utilized by the Respondent. Respondent never renewed his request for an inspection with Supervisor Hayes. Don H. Keirn, Chief, Driver Improvement Bureau for Petitioner, regulates programs related to problem drivers. Chief Keirn has been the bureau chief for driver improvement for approximately twelve (12) years and also is in charge of regulating driving schools. As part of his duties, he inspects vehicles, making certain that they are properly equipped with dual controls, pass safety inspections and bear signs legible to the driving public. Rule 15A- 2.07, Florida Administrative Code. Chief Keirn reviewed the application to change the ownership of the Respondent's driving school during October of 1981. Chief Keirn had received no advance notification from Respondent of any plans (of Respondent) to change the ownership of the school. John F. Hayes, District Supervisor of the Palm Beach District (Region IV) makes periodic checks of commercial driving schools in the Palm Beach district. During the summer of 1981, Respondent advised Supervisor Hayes that, on April 14, 1980, he gave a behind-the-wheel driving lesson to Alzora Washington, in her own vehicle, rather than in a dual-control vehicle approved by the Department, which lesson resulted in Ms. Washington's car crashing through a fence and into a neighbor's home. (Testimony of Respondent, Ms. Washington; Tr. 18, 19, 38 and Petitioner's Exhibit No. 1) Respondent caused to be placed, in a local weekly newspaper, an advertisement offering driving instructions during October and November, 1981. (Petitioner's Composite Exhibit 5) Also, on November 10, 1981, Respondent gave instructions to Geraldine Wilder White in preparation for her to take the written portion of the driver's license exam to obtain a restricted driver's license. Ms. White paid Respondent a $40.00 fee for the driving instruction. (See Petitioner's Exhibit 4; Tr. 20- 24, 40-48 and Composite Exhibit 5) Sometime during the period in which Respondent requested Petitioner to postpone the inspection of his school, Petitioner learned of Respondent's actions as relates to his giving a driving lesson to Ms. Washington on April 14, 1980. Respondent, Joshua A. Logan, is a 56-year-old male who has custody of his three (3) children. Respondent is employed full time as a professional teacher by the Office of Community Mental Health. Respondent has had no prior charges brought against him by the Petitioner. Nor has he been previously charged with violations of any of the Department's rules. 3/ Respondent was therefore of the opinion that by advising Supervisor Hayes of the accident in which he was involved with Ms. Washington, Petitioner would place him on probation for giving a driving lesson in an unapproved vehicle. Respondent executed an answer to a civil suit initiated by counsel for Ms. Washington as a result of the automobile accident referred to hereinabove. Respondent also filed a counter-claim to Ms. Washington's claim and admits to having made several mistakes in both the answer and the counter-claim respecting damages and claims for such damages. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department deny Respondent's application for renewal of his school license Number 1719 and Teaching Certificate Number 4531. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 30th day of November, 2017.
