The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S 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 15th day of July, 2003.
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
Findings Of Fact During the time in question, Respondent was employed by Petitioner as a school bus driver. She had become a bus driver in October or September, 1991. On August 17, 1993, Petitioner suspended Respondent without pay as a result of the incidents that are the subject of the above-styled proceeding. On April 25, 1993, while driving an empty school bus to Tampa to pick up students on a field trip, Respondent stopped at a gas station for fuel. Hungry, she found that she had not brought any money with her. She appropriately charged the fuel on the school credit card. But, contrary to Petitioner's policy, she charged a soda and a bag of chips on the same card. When she returned to Ft. Myers and submitted her charge slip, she forgot to mention the personal items. She did not offer to reimburse Petitioner for the personal charges, which totalled $1.69, until demand was made for this amount. While returning from Tampa on the same day driving the loaded school bus, Respondent was proceeding west on Tucker Grade Road approaching the intersection with US 41. Failing to notice a marked railroad crossing, Respondent drove the bus over the crossing without stopping, opening the door, and looking and listening for a train, as required to do by Petitioner's policy. A train was in fact approaching, although some distance away. Evidence offered by Petitioner that Respondent operated her loaded bus at an unsafe speed on three consecutive days in May, 1993, is discredited. Petitioner's sole witness on this matter had repeated clashes with Respondent, for which Petitioner's witness bears at least an equal share of the responsibility. Moreover, Petitioner's witness admitted to changing lanes more than once while operating a loaded school bus to block Respondent's bus from passing when Respondent was trying to service her longer, crosstown route. Petitioner's witness was uncertain as to their relative speeds and only vaguely recalled the incidents allegedly taking place in May. On March 26, 1993, Respondent received an evaluation for the 1992-93 school year. The evaluation indicated that she had reached an "effective" level of performance for a wide variety of responsibilities. This is the lower of the two possible marks that are satisfactory. Two other marks are available to designate unsatisfactory performance; the better of these is that the task is "inconsistently practiced." Respondent's evaluation during the 1991-92 school year was about the same, although she received "inconsistently practiced" for attitude and appearance (the latter for failing to wear her uniform). During the 1991-92 school year, Respondent received two evaluations. The first was dated November 15, 1991. She received "inconsistently practiced" for adhering to driving laws and for a safe driving record. The notes mention a "preventable accident" on October 11, 1991, and that Respondent had exceeded the speed limit by 10 miles per hour at one location at an unspecified time. The remaining marks were "effective." Another evaluation for the 1991-92 school year, which was dated December 13, 1991, contained all "effective" marks. The charging of a bag of chips and soda has already received more attention than the act and omission merit. Failing to stop, look, and listen for a train, while operating a loaded school bus, is a very serious offense. Failing even to notice the crossing is not a defense; rather, such an admission raises a question of Respondent's fitness as a school bus driver. This seriousness of this offense is aggravated by Respondent's record. In a brief career operating a school bus for Petitioner, Respondent has already been involved in a "preventable accident" and has been detected operating her bus at an excess speed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order terminating Respondent's employment contract. ENTERED on March 15, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 15, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as unnecessary. 6: adopted or adopted in substance. 7-8: rejected as subordinate. 9-14: adopted or adopted in substance. 15-16: rejected as subordinate. 17: rejected as repetitious. 18: rejected as unnecessary. 19-20: rejected as subordinate. 21-22: adopted or adopted in substance. 23-26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as unsupported by the appropriate weight of the evidence. 4-5: adopted or adopted in substance. 6-7: rejected as unnecessary. 8-10: adopted or adopted in substance. 11-12: rejected as subordinate and irrelevant. 13: rejected as irrelevant. 14-15: adopted or adopted in substance. 16-18: rejected as subordinate. 19: adopted or adopted in substance. 20: rejected as unnecessary. COPIES FURNISHED: Acting Superintendent Lee County School Board 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Daniel H. Kunkel Kunkel Miller & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Robert J. Coleman 2300 McGregor Blvd. P.O. Box 2089 Ft. Myers, FL 33902
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 The issues in this case are whether Respondent violated Pinellas County School Board Policy 4140A(21) and Section 2.02A of the Pinellas County Schools Transportation Department Bus Driver Handbook, and, if so, should Petitioner suspend Respondent for one day without pay.
Findings Of Fact Ms. Ford started her employment with the School Board as a teacher's assistant in January 1999 and became a full-time bus driver in August 1999. During the 2009-2010 school year, Ms. Ford drove Route 875, on which students are transported in the afternoons from Dixie Hollis to their destinations in St. Petersburg. The bus which Ms. Ford drives on Route 875 is equipped with a video camera which records the activities on the bus during the route. A portion of the activities outside the bus are recorded by the video camera. On January 26, 2010, Ms. Ford was proceeding south on Third Street while on Route 875. At approximately 2:50 p.m., Ms. Ford stopped at the intersection of Third Street and Twenty- second Avenue, South, and turned right. Third Street is a two- lane street located in a residential area, with signs designating bike paths throughout the area. The next intersection on Twenty-second Avenue, South, after Third Street is Fourth Street. Twenty-second Avenue, South, is a two-lane road, except at the Fourth Street intersection where there is a left-turn lane, a center lane with an arrow pointing straight, and a right-turn-only lane. There is a flat median on Twenty-second Avenue, South, which begins a few feet southward of Third Street. The median is delineated by double yellow lines on each side. The median ends at the beginning of the left-turn lane on Twenty-second Avenue, South, at the intersection of Twenty-second Avenue, South, and Fourth Street. Once on Twenty-second Avenue, South, Ms. Ford moved into the left-turn lane and stopped to make a left turn onto Fourth Street. The video recording shows that, as Ms. Ford was traveling in the left-turn lane, there was a bicyclist on the left side of the bus either in the median or very near the yellow center-lines of the road. The bus passed the bicyclist and proceeded to stop in the left-turn lane. While Ms. Ford was stopped in the left-turn lane, the bicyclist rode her bike past the left side of the bus on or over the yellow line. As the bicyclist came along side the bus, she made a gesture with her middle finger and shouted at Ms. Ford. After the bicyclist gestured and made comments to Ms. Ford, Ms. Ford shouted at the bicyclist and said: "What you mean. No, you ain't even in the road. I bet you won't look back. Look back. No, you better get out of the road." Ms. Ford also blew her horn at the bicyclist several times. The bicyclist stopped a few inches in front of the bus in the turn lane. Ms. Ford turned onto Fourth Street, closely following the bicyclist. The bus was so close to the bicycle that one of the students in the bus said: "Don't hit her [the bicyclist], miss." Ms. Ford replied: "I might. She done made me mad." As the bus was traveling on Fourth Street, a student said: "Slow down, miss. Please slow down." The bicyclist felt that the bus was traveling so closely to her as they were making the turn from Twenty-second Avenue, South, to Fourth Street that she feared for her life. Ms. Ford claims that the bicyclist had not been in front of the bus on Third Street; that the bicyclist had been going south on Twenty-second Avenue, South, and was traveling in the median; and that she thought that the bicyclist had turned left onto Florida Avenue. The bicyclist claims that she had been riding south on Third Street and that no bus was near her; that she turned left onto Twentieth Avenue, South; that she had intended to turn left onto Fourth Street; that, as she was getting into the turn lane, the bus came along her right side with no warning; and that she had to veer to the left into oncoming traffic to avoid being hit by the bus. She claims that she had not traveled in the median. Whether Ms. Ford's claims are correct or whether the bicyclist's claims are correct concerning whether the bicyclist was in the traveling lane of Twenty-second Avenue, South, is irrelevant based on the charging document. Additionally, the claims of Ms. Ford and the bicyclist are equally credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Ford violated School Board Policy 4140A(21) and Section 2.02A of the Handbook and suspending her without pay for one day. DONE AND ENTERED this 17th day of December, 2010, 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 17th day of December, 2010.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her. If so, what specific disciplinary action should be taken
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since May of 1984. She is currently under suspension pending the outcome of this disciplinary proceeding. For the duration of her employment with the School Board, Respondent has held a school bus aide position and been assigned to the School Board's South Regional Transportation Center (Center), the director of which, since May of 1994, has been Patricia Snell. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: selection and promotion of employees; separation, suspension, dismissal, and termination of employees for just cause; the designation of the organizational structure of the DCPS and the lines of administrative authority of DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX, Section 13, of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article IX, Section 14F, of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4- 1.05, which is the School Board's "Drug Free Work Place General Policy Statement." It provides, in pertinent part, as follows: DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place. DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable. Policy Objectives To promote a healthy, safe working and learning environment; To seek the rehabilitation of employees with a self-admitted or detected substance abuse problem; To eliminate substance abuse problems in the work place; To provide a consistent model of substance-free behavior for students; To provide a clear standard of conduct for DCPS employees; and To hire drug-free employees. Policy Statement- Illegal Drugs Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions: a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . . Policy Statement- Alcohol and Prescription Drugs Alcohol, prescription, and over-the-counter drugs are legal and readily available. Generally safe and acceptable, these drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will be free of intoxication from alcohol. Employees in safety-sensitive positions, as defined herein, will be free of measurable alcohol concentrations. Further, employees will not manufacture or use alcoholic beverages while on School Board property or on duty. . . . Policy Statement- Employee Physical Examination/Screening Health Services Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules. Circumstances under which testing may be considered include, but are not limited to, the following: observed use of illegal drugs and/or abuse of alcohol during work hours; apparent physical state of impairment of motor functions; marked changes in personal behavior on the job not attributable to other factors; . . . Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test. Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results. The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place. DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabilitation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: A. Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. . . . According to Article V, Section 18, of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27, thereof, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. The School Board's Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including the aforementioned School Board Rule 6Gx13-4-1.05, as well as School Board Rules 6Gx13-3E-1.10, 6Gx13-4-1.06 , 6Gx13- 4A-1.21, and 6Gx13-4E-1.011.2 School Board Rule 6Gx13-3E-1.10 School Board Rule 6Gx13-3E-1.10 incorporates by reference the provisions of the School Board's Transportation Rules and Policies Manual (Manual), including those set forth below, of which Respondent was timely made aware. Section 4 of the Manual describes "school bus aide responsibilities" and provides as follows: There is no requirement in either the law or the regulations that require the assignment of school bus aides to school buses. Dade County however, has elected to assign aides to some but not all of its school bus routes. Aides are not automatically placed on a bus because it is carrying exceptional education students. School bus aides are assigned to act as attendants on the school bus with the primary duty of maintaining order on the bus to allow the driver to give full attention to driving. Under the direction of the driver the aide works with children, school staff and parents in loading and unloading operations and in seeing to the needs of exceptional education students. The work of the aide must allow the driver to devote full time and attention to the safe operation of the vehicle. The aide must understand that the driver is in charge of the bus and is responsible for its safe operation. School Bus Aide responsibilities are: Bus aides must be clean and neat in appearance at all times (in prescribed uniform while on duty), must not use profane language, nor be under the influence of drugs or alcohol, nor use tobacco in the presence of students. Bus aides must abide by all safety rules and regulations which pertain to drivers but which do not relate specifically to driving tasks. Bus aides must be familiar with the rules of student conduct in order to assist in student behavior management and should have a working knowledge of the capabilities and limitations of the various categories of exceptional children. The aide shall prepare and maintain an accurate seating plan. Bus aides should be familiar with the use and location of all safety or emergency equipment (e.g., first aid kit, fire extinguisher, reflector) and should assist the driver in using this equipment should the need arise. The school bus aide must understand and learn how to assist the driver should it become necessary to evacuate the bus in an emergency. In dealing with physically handicapped students, bus aides will assume primary responsibility for loading and unloading students, must be familiar with the operation of wheelchair lifts and use of restraining devices and other equipment used in the transportation of the handicapped. Additionally, bus aides must ensure that wheelchairs are properly attached to their tie-down devices, and that use of such devices is consistent with the specification requirements as determined by the year of the school bus. The school bus aide should assist the driver in preparing reports, checking the working condition of safety equipment, and performing routine cleaning jobs. The bus aide and driver must have a good working relationship. The school bus aide should become familiar with the route, with the loading and unloading procedures, and be attentive to the location of the bus at all times along the route. The aide should be able to guide a substitute driver when this becomes necessary. The school bus aide shall render first aid, if necessary, to the limits of his/her training and abilities, and seek prompt aid by the best possible means available. This assistance shall be limited to that which may be normally expected of a reasonably prudent person. The school bus aide shall check under every bus bench at the end of every run. The school bus aide shall sit with or behind the last student on the bus in order to observe and monitor all the students on the bus. As a reading of Section 4 of the Manual reveals, the duties of a school bus aide are safety-sensitive and involve direct contact with students. Section 9 of the Manual describes the Department's "attendance policy" and provides as follows: ATTENDANCE RESPONSIBILITES School bus driver/aides are expected to be prompt and punctual in their attendance on all work days in accordance with the current calendar and their assigned schedule or contract. ABSENCES, AUTHORIZED For absences to be authorized, they must be reported to the driver's/aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time but not later than prior to the next scheduled report time. Even in an emergency every possible effort must be made to inform the Dispatcher. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Proper forms shall be completed promptly for payroll purposes. ABSENCES, UNAUTHORIZED Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver/aide does not report to work fifteen (15) minutes after the scheduled report time, or does not call in absent before their report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCE Drivers/aides must notify their Transportation Center's Dispatch Office as soon as they have determined they cannot report to work. Do not make arrangements on your own for a substitute! All arrangements must be made by the Dispatch Office. If you will not be reporting for work on regular school days, call in immediately. Speak with the Dispatcher, or your Field Operations Specialist. If you cannot report to work because of an emergency situation, contact the Dispatch office as soon as you possibly can. If the situation requires you to leave the area, have a relative or friend contact the office in your place. If your absence will occur sometime in the future, give the Dispatch Office as much advance notification as possible. When you contact the dispatch office, explain the reason for your absence, how long you will be off, and the estimated date of your return. If you will be off work for more than one (1) day, you must contact the office each day, prior to your report time, with a complete update of the situation. The only times you do not have to contact the office on a daily basis are as follows: Admission to a hospital as a patient. Maternity leave A doctor's work release for a specified number of days Extended sick leave Approved leave of absence If you are out of town CHECK-IN POLICY All employees are expected to arrive at work on or before their scheduled report time. Drivers/aides will be given a five (5) minute grace period to report to work, during which no disciplinary or financial action will be taken. For example, if you are scheduled to report for work at 6:00 a.m., as long as you sign-in by 6:05 a.m. you will be allowed to go out on your assigned route, with no repercussions. Drivers/aides who report to work 6-15 minutes after their scheduled report time will be considered "tardy." Tardy drivers/aides will be permitted to work. However, the Dispatch Office may assign a stand-by or substitute driver/aide to the route of the tardy driver/aide. Driver/Aides more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers/aides and not allowed to drive their route. A record will be kept of the amount of time the employee was late. Lost time will be accumulated, and employees will be docked pay in 1/2 day increments. Drivers/aides who report to work 16 or more minutes after their scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on unauthorized leave-without pay (ULWOP) and shall be subject to disciplinary action in accordance with the AFSCME Contract. Extenuating circumstances will be evaluated by the Center Director, and upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. PAPERWORK It is the driver's/aide's responsibility to report to the supervisor to complete and/or produce all required paperwork related to their absence on the first workday upon their return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. School Board Rule 6Gx13-4-1.06 School Board Rule 6Gx13-4-1.06 is the School Board's "tobacco-free work place" rule. It provides, in pertinent part, that, as of September 1, 1989, the "[u]se of tobacco products is not permitted . . . on school buses." School Board Rule 6Gx13-4A-1.21 School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. School Board Rule 6Gx13-4E-1.011 School Board Rule 6Gx13-4E-1.011 addresses the subject of "absences and leaves" and provides as follows: No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without prior approval shall be deemed to have been willfully absent without leave. The Center's Check-In Procedures In August of 1994, a few months after she assumed her position as the director of the Center, Patricia Snell sent the following memorandum concerning "check-in procedures" to all of the school bus drivers and school aides assigned to the Center: All drivers and aides must pick-up their bus keys or tag from the key board in the Dispatch office. This is the method of checking in for your shift. If you do not check in, your route will be given to a substitute driver and you will be considered NO CALL/NO SHOW for that shift. All drivers and aides must return their keys and tags to the key board immediately after each shift. Dispatch will have a list of field trips and those drivers and aides will then turn their keys and tags in the slot in the dispatch office if after hours. If there is a problem with your bus, turn in bus keys with the D.R.R. to Dispatch. If you are assigned a spare, then the spare bus keys will be placed on your assigned key hook prior to your shift. Your regularly assigned bus will not be returned until your assigned spare bus is fueled, swept, trash is emptied, windows up and parked in the proper parking space. You need not sign in. The Office Helpers and Dispatchers will keep track of your arrival times by use of the key board. The Tardy Policy will be strictly enforced. Employees who are 6-15 minutes late These employees are "late" or "tardy" and appropriate progressive discipline will be initiated. Such employees will be permitted to work their shift. Employees who are 16 or more minutes late These employees are recorded as "unauthorized leave without pay" and are not permitted to work that shift. Appropriate disciplinary action will be initiated. Respondent received her copy of this memorandum on August 25, 1994. Previous (Pre 1994-1995 School Year) Warnings Given Respondent Regarding Attendance and Leave Unauthorized leave was a subject with which Respondent should have been familiar at the time she received Snell's memorandum inasmuch as Respondent had received disciplinary warnings from her supervisors concerning the matter in the past. For instance, on February 11, 1988, she had received a memorandum (dated February 3, 1988) from Jack Schee, the then- director of the Center, which read as follows: While signing the payroll on January 29, 1988, I became very disappointed to discover that you had already started the new fiscal year with unauthorized leave without pay. This carefree, unresponsible attitude has got to change. The department, and more specifically your co-workers, count on your presence daily to accomplish our mission to provide the students of the Dade County schools with whatever is necessary to enhance their education. All employees in the Department of Transportation are being monitored for poor attendance and unauthorized leave without pay. In order to improve attendance, I am prepared to follow-through with any necessary action, such as conferences or suspensions, as the situation merits. Our records indicate that this is your 1[st] unauthorized absence. Per AFSCME Contract, Article XII, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totaling ten or more work days during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." In addition, Respondent had received written Operational Reminders for unauthorized absences on July 6, 1988, and September 5 and 7, 1989. Furthermore, on May 10, 1990, Schee had held a conference-for-the-record with Respondent to discuss Respondent's attendance record. Schee subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference. Schee's memorandum read as follows: A conference-for-the-record was held in my office on May 10, 1990 to discuss the attendance record of Ms. Jennifer Gardner, bus aide. In attendance at this conference were Ms. Gardner, Ms. Karen Crapps, route manager, and myself. Ms. Gardner stated that she did not want to have a representative present at the conference after I explained that she had the right to representation. I explained that on numerous occasions, the most recent being May 4, 1990, Ms. Gardner had failed to report to work and did not call the office to inform us of her absence. In addition, on May 4, 1990 Ms. Gardner reported to work thirty-five minutes late and missed her work assignment. On May 8, 1990, her assigned driver, Ms. Helen Spence, informed the office that Ms. Gardner reported to work on May 7, 1990[,] but that she fell asleep during most of her Southwood run. Ms. Gardner then stated that she had no comment to make concerning her attendance record. She stated that she did fall asleep on the bus but did not sleep the entire Southwood run. I concluded the conference by stating that her attendance record would be closely monitored and that if improvement was not made stronger disciplinary action would follow. I also informed Ms. Gardner that she would receive a memorandum of understanding concerning her attendance. The "memorandum of understanding" to which Schee referred was received by Respondent on May 16, 1990. It read as follows: On May 10, 1990 we held a conference-for-the- record concerning your attendance on the job and your failure to inform the office when you are not coming to work. I expressed the fact that I was extremely disappointed that your attendance has not improved since we have discussed this problem many times before. I then explained to you that if you continue to fail to report to work and do not inform the office then I would forced to request more serious disciplinary action. By way of this memorandum I am instructing you to inform the office at least 30 minutes before your reporting time on any occasion in which you cannot come to work. I am also instructing you that you will not be allowed to report to work late and expect to be paid for that time. If your performance does not improve I cannot guarantee your employment for summer school session. As acknowledgment that you have received this memorandum, and understand it, please sign below and return to me. A copy is provided for your purpose. Respondent had also received written Operational Reminders for unauthorized absences on May 6, 7 and 8, 1991. On May 15, 1991, she received a memorandum (dated May 9, 1991) from Schee concerning these unauthorized absences. The memorandum read as follows: During the payroll period ending May 9, 1991, you chose to take Unauthorized Leave Without Pay on May 6, 7 and 8th. You are professionally accountable to report to work on time and/or call the operations office no less than one-half hour prior to your check- in time, to inform them of your absence. Failure to call within the prescribed time constitutes Unauthorized Leave Without Pay. The attendance of all employees in our department is monitored daily. In order to improve attendance, I am prepared to follow through with any necessary action, such as a conference-for-the-record or suspension, as the situation merits. Our records indicate that this is your 3rd unauthorized absence. Per AFSCME Contract: Article XI, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totalling ten or more working days during the previous twelve-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." Warnings Given Respondent Regarding Attendance and Leave During the 1994-1995 School Year On November 16, 1994, Respondent received a written Contact Report from the Center's coordinator, Wynona Sleeth, concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: Six half days NCNS [No Call/No Show]. One whole [day] unauthorized. Any day you do not have time available is unauthorized. Any time you call in after due time is NCNS. Sleeth subsequently, on or about December 21, 1994, provided Respondent with the following Letter of Deficiency: This is to inform you that you have accumulated 17 Absences Tardies NC/NS 9 ULWP [unauthorized leave without pay] since 8-29-94. I am reminding you that 3 consecutive days of ULWP constitutes abandonment of position and may be subject to a recommendation for disciplinary action not excluding suspension and/or termination. An accumulation of 10 or more days of ULWP may warrant a recommendation for termination. Your job performance is important to us and we would like to assist you to improve. If you need assistance, please come to the operations office to discuss this matter. On May 11, 1995, Snell and Sleeth held a conference- for-the-record with Respondent concerning Respondent's attendance record. Snell prepared and provided to Respondent on May 17, 1995, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: A Conference-for-the-Record was held in my office on May 11, 1995. Yourself, Ms. Wynona Sleeth, Coordinator and this administrator were present. The conference was held to discuss your attendance to date. You had notification of [your] right to union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed by the District since May 2, 1984. You were reminded of memos you had received and signed notifying you of this school year's absenteeism. A calendar highlighting the days you were absent was explained to you and you were given a copy of Article XI, Section 1(D) of the union contract. You were asked if you needed the Employee Assistance Program. You replied that you did not need it. I then read the [written absence from] worksite directive to you and what you were required to do from this point on and that non-compliance could lead to further disciplinary measures up to and including suspensions or termination. Respondent had received a copy of the "[written absence from] worksite directive" the day of the conference-for-the- record. It read as follows: Please be advised that you have been absent forty-four days (44) days from the worksite during the 1994/95 school year. Since your absence from duties adversely affects the effective operation of this worksite, you are apprised of the following procedures concerning future absences: Intent to be absent must be communicated directly to this administrator or the administrator on duty before your assigned shift. Absence for illness must be documented by your treating physician and a written medical note presented to this administrator upon your return to the site. These directives are in effect upon receipt of this notice and are necessary to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities and could lead to further disciplinary action up to and including suspensions or termination. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1994-1995 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 26 days: August 30, 1994; September 28, 1994; October 19, 20, 26 and 31, 1994; November 2, 10 and 28, 1994; December 22, 1994; January 25, 1995; February 8, 9, 14 and 16, 1995; March 7, 10 and 22, 1995; April 17, 26 and 28, 1995; May 1, 3, 17 and 26, 1995; and June 5, 1995.3 Respondent was offered a contract for the following school year and she accepted the offer. The 1995-1996 School Year On October 2, 1995, Respondent received a written Contact Report from Sleeth concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: You had 9 hours of unauthorized absences for the pay period 8/25-9/7/95. You need to work on having a good attendance record. On October 18, 1995, Snell observed Respondent smoking a cigarette on a school bus. Respondent knew or should have known that such conduct was prohibited. Snell confronted Respondent and reminded her that smoking tobacco products on a school bus was forbidden. On December 12, 1995, Respondent received a written Transportation Operations Procedures Reminder from Sleeth concerning unauthorized absences on August 28 and 30, 1995; September 14, 1995; October 6 and 26, 1995; and November 6 and 29, 1995. On March 5, 1996, Snell held a conference-for-the- record with Respondent at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 14, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On March 5, 1996, at 10:15 a.m. a Conference- for-the-Record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not want union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of Unauthorized leave. Since August 28, 1995, you have accumulated 15 unauthorized absences; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19 and 1/23/96. Your absence from your duties directly impacts the effective operation of this worksite. You received a copy of Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract and these documents were reviewed with you. District Support Programs are available for you to contact at 995-7111 if you so desire. You stated that you understand the seriousness of the problem and will try to improve your attendance. Any further instances of Unauthorized Absences may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. Respondent also received from Snell on March 14, 1996, the following written warning (dated March 11, 1996): As of January 23, 1996, you have been absent on 15 occurrences without authorization. As per the AFSCME contract, Article XI, Section 4-B[:] "Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence." You are hereby officially warned that if you continue to have unauthorized absences disciplinary action my result, up to and including suspension, termination, or non- reappointment. On April 30, 1996, Respondent received a written directive from Snell to report for another conference-for-the- record in Snell's office at 9:15 a.m. on May 7, 1996, to discuss her "unauthorized leave and job performance." Respondent failed to report as directed. The conference-for-the-record was rescheduled for May 17, 1996,and ultimately held on that date. Snell prepared and provided to Respondent on May 28, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Friday, May 17, 1996, at 9:15 a.m. a conference-for-the-record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave. Since August 28, 1995, you have accumulated 23 occurrences of unauthorized leave which total 12 1/2 days; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19, 1/23/96, 4/2, 4/4, 4/17, 4/26, 4/29, 5/3, 5/13, and 5/16/96. Your absence from your duties directly impacts the effective operation of this worksite. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract were reviewed. The District Support Agency was offered and is available for you and may be contacted at 995-7111 if you so desire. You agreed to call in as soon as you know you are going to be out and to bring documentation in the next working day. Your record of unauthorized absences will be reviewed and this review may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1995-1996 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 30 days during the regular school year: August 28 and 31, 1995; September 14, 1995; October 6 and 26, 1995; November 6 and 29, 1995; December 4, 1995; January 5, 8, 10, 12, 18, 19 and 23 1996; February 16, 1996; March 19, 21, 26 and 28, 1996; April 2, 4, 17, 26, and 29, 1996; May 3, 13, 16 and 17, 1996; and June 4, 1996.4 Respondent was offered a contract for the following school year and she accepted the offer. The 1996-1997 School Year On September 4, 1996, and October 2, 1996, respectively, Respondent reported to work six and ten minutes after the scheduled starting time (6:00 a.m.) of her morning shift. On both of these occasions she received a written Transportation Operations Procedures Reminder regarding her obligation to report to work on time. Respondent also received written Transportation Operations Procedures Reminders for unauthorized absences in November of 1996, on the 5th (afternoon shift), 13th (afternoon and morning shifts), 14th (afternoon and morning shifts), 15th (afternoon shift), 20th (afternoon and morning shifts) and 26th (afternoon shift) of that month, and for reporting eight minutes late to work for her afternoon shift on November 25, 1996. Along with the written Transportation Operations Procedures Reminders concerning her November 5 and 13, 1996, unauthorized absences, Respondent was given an explanation of the provisions of Section 9 of the School Board's Transportation Rules and Policies Manual and Article V, Section 27, of the AFSCME Contract, as well as copies of these provisions. The written Transportation Operations Procedures Reminders concerning Respondent's November 14, 15, 20, and 26, 1996, unauthorized absences, and her tardiness on November 25, 1996, were each accompanied by the following "verbal warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On December 6, 1996, Respondent was referred by Keith White, an administrative assistant at the Center, to the School Board's Employee Assistance Program because of his "concerns" regarding Respondent's unauthorized absences. Respondent was advised of this supervisory referral on December 9, 1996. Respondent declined to participate in the School Board's Employee Assistance Program and continued to have erratic attendance. Respondent received, on January 5, 1997, and March 6, 1997, written Transportation Operations Procedures Reminders concerning her unauthorized absences and tardiness, each of which contained the following "written warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On March 11, 1997, Snell held a conference-for-the- record with Respondent, at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 20, 1997, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Tuesday, March 11, 1997, at 10:00 a.m. a conference-for-the-record was held with you in the office of the Director, South Regional Transportation Center. In attendance were Ms. Willie McKinney, Coordinator, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since 5/2 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave and job performance. Since March 19, 1996 you have accumulated 28 whole days of unauthorized leave from 42 occurrences. Your absence from your duties directly impacts the effective operation of this work site. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract, along with all attached warnings were reviewed. A referral to the District Support Agency [Employee Assistance Program] was made on December 6, 1996. The case was closed due to the fact that you declined to participate. You agreed to call in as soon as possible when you must be absent and to bring documentation in the next working day. You also agreed that you would not be absent unless absolutely necessary. Your record of unauthorized absences will be reviewed with Transportation Administration and the Office of Professional Standards and may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. By memorandum dated March 27, 1997, Snell brought the matter of Respondent's "attendance problems" to the attention of Jerry Klein, the senior executive director of the School Board's Transportation Department, and inquired of Klein if he "would like to move forward with [the] dismissal of Ms. Gardner." Klein, on April 1, 1997, sent the following memorandum to Barbara Moss, an executive director in the School Board's Office of Professional Standards: Ms. Jennifer M. Gardner, School Bus Aide, South Transportation Center, employee #145489, has accumulated 28 days of Unauthorized Leave Without Pay (ULWP) in the last 12 months. Attached please find supportive documentation from Ms. Pat Snell, Director, South Transportation Center. It is requested that Ms. Gardner be recommended for dismissal for violation of Article XI, Section 4(B) of the Collective Bargaining Agreement, excessive absenteeism. Your assistance in obtaining Board approval is appreciated. After reviewing the matter, Moss (by memorandum received by Respondent on April 17, 1997) directed Respondent to appear at a conference-for-the-record on April 30, 1997, in the Office of Professional Standards to discuss Respondent's "attendance to date, and [her] future employment status with the Dade County Public Schools." The conference-for-the-record was held on April 30, 1997, as scheduled. Moss subsequently prepared and later, on June 3, 1997, provided to Respondent a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Moss wrote the following: Action Taken You were offered an opportunity to resign your position with Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences: Intent to be absent must be communicated directly to the designated supervisor. Absences for illness must be documented by your treating physician and a written medical note presented to the designated supervisor upon your return to the site. If it is determined that future absences are imminent, leave must be considered and procedures for Board approved leave implemented if eligible to apply for leave. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit, to the services provided to students, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review [by] the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A-1.21, Employee Conduct, and School Board Rule 6Gx13-4C-1.02, Non-instructional Personnel. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects performance. You were reminded of the prime directive to maintain a safe working environment for all students and that your actions violated this directive. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Senior Executive Director in the Office of Professional Standards and the Associate Superintendent in the Office of Labor Relations and Personnel Management. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension, demotion, or dismissal. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. On June 5, 1997, Respondent reported for work with the smell of alcohol on her breath. Furthermore, she was unsteady on her feet and her speech was slurred. After conferring with Klein and Moss, Snell directed Respondent to submit to alcohol and drug testing at the Baptist Medical Group's facility in Homestead, Florida. Respondent went to the facility that same day5 and submitted to breath-alcohol testing, which revealed that Respondent had a breath-alcohol level of .191 and that she was under the influence of alcohol to the extent that her normal faculties were impaired. At the facility that day (June 5, 1997), Respondent also provided a urine specimen for testing. The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) D.O.T. Custody and Control Form, to LabCorp's laboratory in North Carolina for analysis and testing. The labeled and sealed container with the specimen and accompanying form were received by LabCorp on June 7, 1997. Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen. An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolites produced when cocaine and marijuana are ingested and metabolized in the body. Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, a reliable and accurate method of confirmatory testing, was utilized. The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine and marijuana metabolites in concentrations consistent with, and indicative of, Respondent's ingestion of cocaine and marijuana prior to the collection of her urine specimen. The drug test results were reported to the School Board and the Medical Review Officer (at the National Medical Review Offices, Inc., in Los Angles, California). On June 10, 1997, Respondent received a memorandum from Snell directing Respondent to contact the Medical Review Officer "as soon as possible." On June 10, 1997, after examining the test results and speaking with Respondent, who admitted that she had used both cocaine and marijuana, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no legitimate medical explanation for the presence of the cocaine and marijuana metabolites in the urine specimen Respondent had provided. On June 11, 1997, Moss held a conference-for-the-record with Respondent. The results of the alcohol and drug tests to which Respondent had submitted were discussed at the conference. Upon being told of the test results, Respondent stated, "I don't know about the cocaine, but I am aware of the marijuana. I was very depressed and was with some friends who were using marijuana and joined them in using." She further stated that she did not drink alcoholic beverages when she worked. Also addressed at the conference were Respondent's unauthorized absences. During the 12-month period preceding the conference (June 12, 1996, to June 11, 1997), she had been absent without authorization on the following 37 days for a total of 147 hours or 24.5 "workdays," as that term is defined in Article V, Section 18, of the AFSCME Contract: July 2, 1996 (3 hours); July 29, 1996 (3 hours); October 31, 1996 (3 hours); November 5, 1996 (3 hours); November 13, 1996 (6 hours); November 14, 1996 (6 hours); November 15, 1996 (3 hours); November 19, 1996 (3 hours); November 20, 1996 (6 hours); November 26, 1996 (3 hours); December 4, 1996 (3 hours); December 11, 1996 (6 hours); December 13, 1996 (3 hours); December 18, 1996 (6 hours); December 19, 1996 (3 hours); December 20, 1996 (3 hours); January 8, 1997 (3 hours); January 22, 1997 (3 hours); January 23, 1997 (6 hours); January 27, 1997 (6 hours); February 3, 1997 (6 hours); February 7, 1997 (3 hours); February 12, 1997 (6 hours); February 18, 1997 (3 hours); February 19, 1997 (6 hours); February 20, 1997 (3 hours); February 24, 1997 (3 hours); February 26, 1997 (3 hours); March 3, 1997 (3 hours); March 20, 1997 (3 hours); March 24, 1997 (6 hours); April 15, 1997 (3 hours); April 21, 1997 (6 hours); April 24, 1997 (3 hours); May 12, 1997 (3 hours); May 23, 1997 (3 hours); and June 5, 1997 (3 hours). Respondent was given another assignment at the Center pending further School Board review of her employment At its July 23, 1997, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for just cause, including but not limited to excessive unauthorized absence and violation of Drug-Free Work Place Policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.
The Issue The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.
Findings Of Fact Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses." Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment contract between the parties also requires Respondent to abide by all state and local laws and rules. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus, while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.
Recommendation It is RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1997. COPIES FURNISHED: John M. Hament Kevin J. Hubbart Kunkel Miller and Hament 1800 Second Street, Suite 970 Sarasota, Florida 34236 Harry A. Blair Harry A. Blair, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 Jack Taylor, Acting Superintendent Lee County Public Schools 2055 Central Avenue Fort Myers, Florida 33901-3988
The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
The Issue Whether Pinellas County School Board (Petitioner or School Board) has "just cause" to terminate Respondent's employment as a bus driver, due to violation of School Board Policies: 4140(A)(19), "Failure to Correct Performance Deficiencies"; 4140(A)(21), "Conduct unbecoming a board employee that brings the district disrepute or disrupts the orderly processes of the District"; and (3) 4140(A)(23), "Failure to comply with Board Policy, State law, or appropriate contractual agreement."
Findings Of Fact Petitioner is responsible for operating the public schools in Pinellas County School District and for hiring, firing, and overseeing both instructional and non-instructional "educational support" employees. Respondent has been employed by Petitioner as a regular bus driver and educational support employee, since April 1989. On the morning of January 15, 2010, Respondent commenced her morning elementary school route by picking up students to transport them to Eisenhower Elementary School. After completing the run to Eisenhower Elementary School, Respondent did not conduct an interior inspection of the bus, as required. As a result, a six-year-old child was left sleeping on the bus after Respondent left the school. While waiting to depart from the school grounds, the bus engine was not turned off, but, rather, it was left to idle. Respondent was in a hurry to leave Eisenhower Elementary School because she wanted to use the restroom. Although bus drivers are encouraged to use the restroom at the school, and it is considered a "best practice" to do so, Respondent thought she could cut some time off of her run and preferred to drive to the Mobile service station located at the corner of U.S. 19 North and Route 590 rather than use the restroom at the school. Once at the Mobile service station, Respondent stopped the bus parallel to Route 590 and went into the store. The restroom was occupied at the time, requiring her to wait. She testified that while she was waiting, she went out to the bus to close a window and then returned to the service station to use the restroom. Throughout this time period, the child was left unattended on the school bus. The bus was left positioned near a heavily-traveled area of Pinellas County during rush hour traffic, and the bus was left idling. Respondent denies that the bus was left idling while the child was unattended. Her denial, however, is not credible. If the engine, in fact, had been turned off as she claims, then the Child Reminder System would have caused the horn to blow, which she admits did not occur. According to Respondent, the reason that the horn did not blow when she turned off the engine was because she was "not 100 percent sure that it worked . . . during the run . . . [because she] could have hit a bump or something like that " Since 2005, all Pinellas County school buses are equipped with a device called a Child Reminder System. It is a safety device intended to enforce the bus driver's obligation to inspect his or her bus after each run. Once a bus driver turns off the engine, the horn is activated within 10-15 seconds, which forces the bus driver to walk to the back of the bus and hit a latch to de-activate the noise. Respondent acknowledged that checking the Child Reminder System is required as part of the pre-trip inspection. Respondent did not report any malfunction the morning of January 15, 2010. She stated that the Child Reminder System worked in the morning. In an effort to support her theory that the Child Reminder System may have been broken by 8:30 a.m. that same morning, Respondent claims that she has "over and over" turned in notes to the transportation department that the Child Reminder System was broken. The records from the transportation department do not support her claim. Rather, it is unrefuted that her bus--bus number 20909--was a brand new bus and never once, from the beginning of the 2009 school year through January 15, 2010, did Respondent file a request to repair or otherwise provide notification to the transportation maintenance department that the Child Reminder System was not working. The greater weight of credible evidence finds that Respondent left her bus idling at the school and at the Mobile service station. As a result, the Child Reminder System was never activated, causing additional danger to the sleeping child who remained undercover on the bus. After Respondent left the store, Respondent resumed her route and picked up several middle-school students. The sleeping child was discovered by a middle-school student, who notified Respondent. After several minutes, Respondent called the dispatcher to notify her of the situation. Respondent used her cell phone to call the dispatcher. The dispatcher directed Respondent to return to Eisenhower Elementary School with the child. Respondent denied that she used her cell phone, instead of the two-way radio, in an effort to avoid publicly broadcasting her error over the radio system. Respondent admitted that she is well aware that the use of a cell phone while driving a bus violates School Board policy and Florida law. Respondent stated that the use of her cell phone "would be easier," because the two-way radio was being used by other callers to report an accident. Respondent implied that its use was safe, because she was not actually driving on U.S. 19, but, rather, a service road adjacent to U.S. 19. Respondent subsequently changed her story, stating that she was not driving, but had pulled her bus to the side of the road. Respondent's rendition of the facts on this point is also not credible. The Digital Video Recorder (DVR) clearly showed that the bus was moving while Respondent was speaking with dispatch on her cell phone. It is also evident from the DVR recording that the radio transmission was not in use by speakers discussing an accident as claimed by Respondent. Respondent's employment is governed by the agreement (2008-2011) between the School Board and SEIU/Florida Public Services Union, Local 1220, an affiliate of Service Employee International Union (AFL/CIO) (hereinafter Agreement). The Pinellas County Transportation Department produces a "School Bus Driver Handbook” (hereinafter "Bus Driver Handbook"), which describes policies and procedures to be followed by all bus drivers. Respondent received a copy of the Bus Driver Handbook and acknowledged that she received and read it.
Recommendation Based upon the forgoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order holding that "just cause" exists for the termination of the employment of Respondent for violation of School Board Policy 4140(A)(19), (20), and (24) and the Agreement, as well as state law, and that Respondent should be dismissed from her position as a bus driver with the School District of Pinellas County. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of November, 2010.
