The Issue Whether the Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
The Issue The issue in the case is whether the Sarasota County School Board (Petitioner) has cause for terminating the employment of Virgil Mae (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a school bus driver. The Respondent was subject to the provisions for "classified" employees as identified in the Collective Bargaining Agreement (CBA) between the Petitioner and the "Sarasota Classified/Teachers Association." Under the terms of the CBA, the Petitioner's school bus drivers must comply with various requirements including: possession of a commercial driver's license (CDL) and automobile insurance, passage of an annual health physical, passage of a "reflex" or dexterity test, and completion of in-service training. In May of each year, the Petitioner makes physicians available to provide health physicals for school bus drivers at no charge. In the alternative, the Petitioner pays the insurance co-payment for drivers who choose to obtain physicals from their personal physicians. School board policy requires that the reflex test be conducted within 30 days of the physical. Accordingly, the Petitioner provides reflex testing in May, so that it may be completed in conjunction with physicals. The reflex testing is also at the Petitioner's expense. Prior to May of each year, the Petitioner posts flyers at the school bus compounds to remind bus drivers of the requirements and advise of the dates of the tests. The Transportation Department also broadcasts the information through a radio dispatch system that provides communications links to all drivers. Written notices are also sent to the drivers. Most drivers complete both tests during May, but drivers may complete the tests in their own time. If a driver chooses to obtain a physical through a private physician, the Transportation Department will schedule the reflex test to accommodate the driver's physical, so that both are completed within 30 days. The Respondent asserted that he was unaware of the requirement that the reflex test be conducted within 30 days of the physical, but the greater weight of the evidence establishes that he has been a bus driver for the Petitioner since October 2003, that he has complied with the annual requirement in previous years, and that the policy has not changed during the term of his employment. The evidence further establishes that the Respondent had not completed the physical even by the time of the administrative hearing. Each fall, during the week preceding the commencement of school, the Petitioner's Transportation Department conducts a "Safety School," during which the school bus drivers receive in- service training sufficient to meet the relevant requirements applicable to drivers. School bus drivers are paid their regular wages to attend Safety School. On the second day of Safety School, the Petitioner conducts a "bid day," through which drivers bid on routes based on their employment seniority. Under the terms of the CBA, school bus drivers must have the valid CDL and have completed the health physical and in-service training no later than the time of the initial bid. Article XXI, Section M, of the CBA provides as follows: An employee who fails to return to duty for each of the first three work days of a new school year and who fails to notify his/her cost center head of his/her intentions will be considered to have abandoned his/her job and may be terminated. At the hearing, the Respondent asserted that he did not return to work because he believed his insurance had lapsed and that his driver's license was suspended and that he was trying to resolve the matter so that he could return to work. He further asserted that he contacted his supervisor and advised him of the matter, by leaving the information with the receptionist who answered the calls. At the hearing, the receptionist acknowledged that the Respondent had called, but stated that he declined to leave a message or a telephone number to which the supervisor could have returned the calls. She testified that according to the "Caller ID" telephone number information, the Respondent was calling from a storage company. The evidence establishes that the Respondent did not appear for the first three work days of the 2008-2009 school year and, in fact, was absent through the first eight days of the school year, extending over a two-week period. The Respondent's explanation for his failure to return to work lacks sufficient credibility and is rejected. Additionally, the evidence establishes that the Respondent failed to obtain the required annual health physical or to complete the in-service training prior to bid day and, accordingly, was not in compliance with the requirements of the CBA. During his employment by the Petitioner, the Respondent has been cited for excessive absences on several occasions. At the hearing, the Respondent asserted that the absences were related to health matters. The evidence establishes that the Respondent failed to supply medical documentation for some of the absences, and they were deemed to be "unexcused."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Virgil Mae. DONE AND ENTERED this 24th day of December, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2008. COPIES FURNISHED: Virgil Mae 1575 20th Street Sarasota, Florida 34234 Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, 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 29th day of June, 2009.
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of April, 2017.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Patricia Banks', employment as a school bus operator based upon the conduct alleged in the Petition for Termination of Employment.
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. Since October 31, 2001, Respondent has been employed by the School Board as a school bus operator. 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 (the "SPALC Agreement"). In September 2004, Respondent was assigned to drive a morning route and an afternoon route. Her morning route ended at about 10:00 a.m., and her afternoon route commenced at about 1:30 p.m. Respondent's daughter, India Miller, also worked as a school bus operator for the School Board. On September 20, 2004, between her morning and afternoon routes, Respondent drove her daughter to the Wal-Mart store on Colonial Boulevard in Fort Myers. Ms. Miller's car was not running, and she was in the process of moving into a new residence. She had asked Respondent to take her to Wal-Mart to purchase cleaning supplies and to look into buying a new computer. Respondent and Ms. Miller were wearing their School Board bus driver uniforms. Respondent parked her car in front of the store, but near the garden department, which is on the side of the building along with the automotive department. Respondent and Ms. Miller entered the building through the front or "general merchandise" ("GM") entrance. Respondent and Ms. Miller proceeded to the electronics department to look at computers. They were assisted by David Heady, a sales associate in the electronics department. Mr. Heady testified that Respondent asked him several questions about the functionality of a certain computer, an eMachines desktop model priced at $698.00. Each woman said she wanted one of the computers, but Mr. Heady had only one of them on the floor. He put that one in a shopping cart for Respondent, then proceeded to the storeroom to get a second computer for Ms. Miller. When he returned with the second computer, about three minutes later, Mr. Heady noticed that Ms. Miller and the first computer were gone. Respondent told him that Ms. Miller had taken the computer to the front of the store to check out. This disturbed Mr. Heady because it is Wal-Mart's policy that all computers should be paid for in the electronics department. Mr. Heady's suspicions were also somewhat aroused by the fact that it was Ms. Miller who took the first computer out of his department, when it was Respondent who had asked for it. According to Mr. Heady, Respondent started toward the front of the store with the second computer, but Mr. Heady stopped her and told her she had to pay for it in the electronics department. Respondent paid cash for the computer, a total of $739.88, then left the electronics department. Mr. Heady then called the loss prevention office and spoke with loss prevention officer, Bernard "Bo" Lee, to inform him that a computer that had not been paid for had been removed from the electronics department. He testified that he checked out Respondent before alerting loss prevention of the missing computer because he did not want a confrontation with Respondent. Mr. Heady also informed his supervisor in the electronics department, Terrell Russ, about the missing computer. Mr. Russ, in turn, made his own call to loss prevention and spoke with another loss prevention officer, Mickey Holman. Respondent testified that she and her daughter went into the electronics department because her daughter wanted a new computer. Respondent stated that she knows very little about computers and that it was Ms. Miller who was asking technical questions of Mr. Heady. Respondent did ask if Mr. Heady had a second computer because she was interested in placing one on layaway for her sons. Respondent testified that there was no computer on the floor of the electronics department. When her daughter told Mr. Heady she wanted to buy the model under discussion, he had to retrieve it from the storeroom. Respondent testified that she waited for Mr. Heady to bring the computer while Ms. Miller shopped for her cleaning supplies. Mr. Heady returned with the computer and told Respondent that she would have to pay for the computer before she could take it out of the electronics department. Respondent called Ms. Miller on her cell phone and told her that she had to come back to the electronics department to pay for the computer. Respondent also asked Ms. Miller if she could afford to lend her the money to place a computer on layaway. Ms. Miller responded that she would not know until she completed her purchases. Respondent could not recall whether Ms. Miller told her that she was coming back to purchase the computer. Respondent left the electronics department and walked to the in-store McDonalds to eat lunch. Finding the McDonalds too crowded, she went outside to smoke a cigarette. The one piece of documentary evidence available at the hearing was the Wal-Mart receipt for the purchase of the computer. The receipt indicates that the computer was purchased with cash in the electronics department, though it does not establish whether it was Respondent or Ms. Miller who made the purchase. Respondent's testimony agrees with that of Mr. Heady on one point: Ms. Miller left the electronics department and was separated from Respondent for at least several minutes. Messrs. Lee, Holman, and Russ all observed Ms. Miller during the time she was separated from Respondent. Mr. Lee testified that he was patrolling the floors of Wal-Mart to watch for shoplifters. He noticed three black women, including Ms. Miller and two unidentified women, placing an eMachines computer in a shopping cart. Mr. Lee stated that the eMachines computers were a "hot item," and he, therefore, paid special attention when customers placed them in shopping carts. Though he had seen Respondent with the other women in the electronics department, Mr. Lee did not see her touch the computer. Mr. Lee stated that he followed Ms. Miller to the front of the store. Respondent was still in the electronics department. Mr. Lee observed Ms. Miller push the cart holding the computer to the line of cash registers, through the line, past the greeter who checked her receipt, and out the GM entrance. Though he did not specifically observe Ms. Miller pay for the computer at the front registers, Mr. Lee assumed that it had been paid for because the greeter allowed her to leave the store without incident. From just inside the GM doors, Mr. Lee watched Ms. Miller walk to a car in the front parking lot. Mr. Lee did not see Ms. Miller load the computer into the car, but he did observe her re-enter the store a few minutes later, without the computer, but carrying a Wal-Mart receipt. He followed Ms. Miller to the toy department, where she met Respondent and the two unidentified women standing near a shopping cart containing a second eMachines computer. Mr. Holman testified that after being radioed by Mr. Russ that a computer had been taken from the electronics department by one of two women in school bus driver uniforms, he began searching the store. He observed Ms. Miller go through the checkout area and past the greeter, who signaled that Ms. Miller had a receipt for her computer. Mr. Holman radioed to the electronics department and told them there was no problem, that the woman had paid for the computer. The person in electronics who answered told Mr. Holman that there was a second computer. Mr. Holman went to look for the second computer while Mr. Lee maintained his surveillance on Ms. Miller. Mr. Holman found the missing computer sitting in an unattended shopping cart in the toy department. After a minute or two, he saw Respondent approach the cart. Then, two other women joined her, and they began talking. Mr. Holman stated that Respondent approached the cart several times, but did not actually touch or take hold of it. After a few minutes, Ms. Miller approached the group of three women. Mr. Lee followed her and maintained his surveillance apart from Mr. Holman. Both loss prevention officers were out of earshot of the four women. Mr. Lee recalled that Ms. Miller handed the receipt to Respondent at that point, though they later passed it back and forth more than once. After some conversation, the two unidentified women walked away. Ms. Miller began pushing the cart containing the computer toward the automotive department called the "TLE" for "Tire and Lube Express." Respondent walked in front of the cart. Mr. Lee noted that exiting through the TLE in the rear of the store would require Respondent and Ms. Miller to walk around the outside of the store to reach the front parking lot and that exiting through the GM entrance would be much more convenient. Mr. Lee testified that this behavior alone would have aroused his suspicions. The women guided the cart out through the TLE entrance. Ms. Miller pushed the cart, and Respondent lifted the front of the cart over the metal strip in the doorway. The electronic article surveillance ("EAS") system did not sound an alarm. Mr. Lee testified that it is not unusual for the EAS system not to sound, and he attached no significance to its silence. After the women were outside the store, Mr. Lee and Mr. Holman approached and asked them to return to the store. Ms. Miller told the men they had scared her. She said, "I pissed myself [sic]." Ms. Miller also told Mr. Lee that she had a receipt for a computer. Mr. Lee found it significant that she said "a computer," rather than "this computer." Mr. Lee and Mr. Holman escorted the women to the loss prevention office. Ms. Miller, ultimately, admitted to stealing the computer. Respondent denied doing anything wrong and was visibly upset when she was detained. In the loss prevention office, Respondent called her employer on her cell phone to arrange for someone to cover her afternoon bus route. None of the Wal-Mart employees present in the loss prevention office could recall Respondent's making any statement that could be construed as incriminating. The local police arrived, and both women were arrested. Ms. Miller subsequently resigned her employment with the School Board. At the time of the hearing, Respondent's criminal case had not been resolved. Again, Respondent told a different story. While she was smoking her cigarette outside, Respondent began to worry about finishing the shopping in time to drive her afternoon bus route. She called Ms. Miller on her cell phone and asked how much longer she would be in the store. Ms. Miller told Respondent that she was paying for her merchandise and asked Respondent whether she had seen her in-laws in the store. Respondent said that she had not seen them and asked where they were. Ms. Miller told her that she last saw them in the toy department. Respondent finished her cigarette, then walked back into Wal-Mart. She walked to the toy department and found her relatives where Ms. Miller had last seen them. Respondent noted that they had a computer in a shopping cart. One of the in-laws told her that it was Ms. Miller's computer, and they were waiting there for Ms. Miller to return. Ms. Miller arrived, took control of the shopping cart, and asked Respondent if she was ready to go. Respondent saw a Wal-Mart receipt in her daughter's hand. Ms. Miller told Respondent that she needed to buy something in the automotive department. Ms. Miller pushed the cart toward the rear of the store, where the TLE was located. When they reached the TLE, Ms. Miller began asking questions of the sales associate. Respondent interrupted her, saying they had to leave in order to make their afternoon bus routes. Ms. Miller pushed the cart out the TLE entrance, and they were approached by Messrs. Holman and Lee, who told them they needed to come back inside. Ms. Miller said, "Oh, shit. You're gonna make me piss on myself." Respondent wondered why Ms. Miller was reacting so strongly, if she had done nothing wrong. Respondent was adamant that she had no idea Ms. Miller was attempting to steal a computer. Respondent believed Ms. Miller had paid for the computer. Respondent testified that she and Ms. Miller had both worked for Wal-Mart in the past, and both knew that a customer is not allowed to take a computer from the electronics department without paying for it. Ms. Miller apparently had a receipt for the computer. Respondent testified that it never crossed her mind that Ms. Miller would steal a computer; that she believed her daughter "had better sense than that." Based upon the testimony of all the witnesses, including the deposition testimony of Messrs. Lee and Holman, and the documentary evidence, it is found that the School Board did not prove by a preponderance of the evidence that Respondent stole a computer from Wal-Mart. The evidence certainly demonstrated that Respondent's daughter, Ms. Miller, attempted to steal a computer. However, even if the testimony of the School Board's witnesses were accepted in its entirety, no witness definitively linked Respondent to the computer in such a way as to demonstrate her guilty knowledge that it was being stolen. The testimony of Mr. Holman cannot be credited. After detaining Respondent and Ms. Miller, Mr. Holman prepared a written report attesting that he observed Ms. Miller purchase a computer in the electronics department and take it to her car, while Respondent selected another computer, put it in a shopping cart, and took it to the toy department. In his pre-hearing deposition, Mr. Holman testified that he saw Ms. Miller select and pay for a computer in the electronics department. During cross-examination during the final hearing, Mr. Holman conceded that he witnessed none of these events. Mr. Holman's efforts to explain his misleading statements were unconvincing. He essentially stated that his reporting practice was to write a first-person narrative commingling hearsay reports from other witnesses with his own personal observations. Thus, when Mr. Holman wrote, "I observed a female (India Miller) purchase a desktop PC in the electronics [department]," he actually meant that Mr. Lee observed the purchase and later told Mr. Holman about it. Mr. Holman's testimony must be disregarded because the undersigned cannot reliably distinguish between Mr. Holman's first-hand observations and the hearsay statements that he adopted as his own. The testimony of the remaining witnesses conflicted on key points. The evidence established that Mr. Heady was confused as to the time of day during which the relevant events occurred. Mr. Heady had no recollection of the two unidentified black women whom Mr. Lee stated were with Respondent and Ms. Miller in the electronics department. Mr. Lee stated that he saw Ms. Miller and the two unidentified women put a computer in a shopping cart. Mr. Heady testified that he placed the computers in the shopping carts. Mr. Heady testified that Respondent paid for the first computer. However, he also testified that it was Respondent who asked him technical questions about the computer's capabilities. Respondent credibly testified that she is ignorant about computers and that it was her daughter who was asking Mr. Heady the technical questions. It is likely that Mr. Heady's recollection was confused and that it was Ms. Miller who paid for the first computer. Respondent's narrative of the relevant events was not without its inconsistencies, but the burden was not on Respondent to establish her innocence. Respondent's narrative was credible as to the key point, that she did not know her daughter was attempting to steal a computer from Wal-Mart. The evidence presented by the School Board was insufficient to demonstrate that Respondent ever gave any indication, through her words or her actions, that she knew Ms. Miller had not paid for the computer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding her back pay and benefits retroactive to December 16, 2004. DONE AND ENTERED this 15th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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, 2005.
The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Richard H. Blake, Petitioner, was employed by the City of Tallahassee in February of 1981 as a coach operator driving a Taltran bus. During the period between February 1981 and his discharge on May 11, 1982, his attendance had not been good and in April 1982 he was issued a written reprimand (Exhibit 5). The specific incident giving rise to this reprimand was Petitioner's calling in shortly before he was due to take his bus out saying he did not feel like driving. The City has a policy that drivers must notify their supervisors at least one hour prior to the time their run is due out if they are unable to meet that scheduled commitment. The reprimand was given for Blake's failure to comply with this policy. He was directed to report for work, which he did after the supervisor had departed with Blake's bus. Blake did not claim to be sick or ask for sick leave. At the same time this reprimand was issued Blake was directed to report to the Employee Assistance Program for evaluation and help. The Employee Assistance Program (EAP) for employees of the City of Tallahassee is operated by Apalachee Mental Health Services. City employees with certain problems affecting their work performance are referred to EAP for evaluation and, if desired by the employee, assistance. The evaluation is not revealed to the employer and the employee is not required to undergo treatment recommended by EAP. The employee referred to EAP is required to go for evaluation. The program is conducted at no cost to the employee and time off is given the employee to go for evaluation and treatment. This program is considered to be a fringe benefit to the employees of the City of Tallahassee. Petitioner reported to EAP as directed and embarked on a rehabilitation program with Apalachee Mental Health Services. No report of Petitioner's evaluation or treatment was made to Respondent. On Monday, May 10, 1982, Petitioner called in around 6:45 a.m. to say he was sick and did not feel like coming to work. The call was made within 30 to 45 minutes before time for his run to start and too late for a relief driver to be obtained. Blakes's supervisor told him to come to work so his bus could go out on schedule. Blake reported as directed, took his bus out and about an hour later (around 8:00 a.m.) called in from his route claiming he was sick and needed someone to relieve him. At the time this call for relief came the Superintendent of Operations, Lloyd McCoy, was at the Taltran depot and he drove a relief driver to Blake's location where Blake was relieved and driven back to the depot by McCoy. Enroute back to the depot McCoy smelled what he thought to be alcohol on Blake's breath and asked Blake if he would consent to a breathalyzer test. Blake agreed to a test and was left in the car while McCoy went into the station to make arrangements with the police. When McCoy came out to tell Blake arrangements had been made for the test, Blake had departed. Later that morning Blake reported to the Police Station but the police would not administer the breathalyzer test without his supervisor being present. Blake then went to the City of Tallahassee Personnel Office where he talked to Beulah Gregory, a Personnel Analyst with the City and Coordinator of EAP. Blake told her he had been told to take a breathalyzer test but would not go unless she went with him. Gregory called McCoy, who met her and Blake at the Police Station, where, at approximately 11:25 a.m. the breathalyzer test was taken by Blake. The test showed a reading of between .05 and .06 percent blood-alcohol. Blake testified that during the period he worked for the City of Tallahassee as a Taltran bus driver he was an alcoholic; that he had been an alcoholic for ten years but did not list this as a handicap on his employment application; that he drank every evening until midnight when he would stop drinking and go to bed so he would be able to work the following morning; that during the weekends while he was not on duty he drank all weekend; that Sunday, May 9, 1982, he drank all day and into the night; that after he went to bed that night at his girlfriend's house he started coughing and had a runny nose; that he started taking Nyquil to help his cough; that between midnight and 7:00 a.m. the following day he drank almost one and one-half bottles of Nyquil; that he did not know Nyquil contained alcohol until after he had taken the breathalyzer test; that when he called in May 10 to say he was sick he had a cough and runny nose; and that it was his cough and runny nose that necessitated him calling for a relief driver after he started his route on May 10, 1982. Between the time he was relieved at his bus until the breathalyzer test was taken Blake took one dose (one and one-half ounces) of Nyquil. A person the weight of Petitioner with the blood-alcohol reading of .055 at 11:25 a.m. related back to 8:00 a.m. when Petitioner was relieved from his run on May 10 would, in the absence of additional alcohol intake after the run started, have shown a blood-alcohol level of .11 percent at 8:00 a.m. A blood-alcohol reading of .10 percent is conclusively presumed to represent intoxication and any person driving a vehicle with that blood-alcohol level will be charged with driving under the influence. The police may arrest and charge a driver with DUI whose blood-alcohol level is .05 and above who is driving erratically or otherwise indicates something abnormal. Following receipt of the results of the blood-alcohol test on May 10, 1982, Petitioner was dismissed as a Taltran bus driver by Respondent on May 11, 1982. No evidence was presented by Petitioner to raise any inference that his race had any relation to his discharge. The evidence respecting race that was presented is that the majority of Taltran bus drivers are black and that the driver hired to replace Petitioner following Petitioner's dismissal was also black. Blake was subsequently rehired by the City of Tallahassee as a Custodian II. He contends that he is now sober and a reformed alcoholic. This testimony was not rebutted.
The Issue Whether the School Board should terminate or take other disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Joe Thomas Alford, Jr., started working for the Bay County School Board in 1980, as a substitute school bus driver. His first full-time position with the School Board was as a "gasoline attendant," a position he assumed in 1981. After Larry Daniels became superintendent of transportation in July of 1985, he granted Mr. Alford's request to be permitted to resume driving a school bus. By all accounts, Mr. Alford did a good job as a full-time bus driver through the end of the school year 1986-87, except for the day he received a speeding ticket while driving a school bus. On another occasion, he exhibited great courage, even heroism, as one of the drivers in a convoy returning from an athletic contest. When the lead bus had an accident that made it impossible for students to get out of the bus in the usual way, Mr. Alford climbed in through a window and kicked out the emergency door, leaking gas tank notwithstanding. 1987-88 On the morning of October 16, 1987, Mr. Alford failed to report for work to drive school bus No. 340 on its three accustomed runs, necessitating the tardy dispatch of another driver. Later, in response to Mr. Daniels' questions, he explained that Harry Wells, a substitute school bus driver, had agreed to drive for him on the morning of the 16th (among other times), with the understanding that Mr. Alford would drive on a field trip for Mr. Wells. It was to an apparent misunderstanding that Mr. Alford attributed his absence without giving notice or arranging for a substitute on October 16, 1987. At the time, school board procedure required a bus driver who was to be absent for any reason to arrange for a substitute, as Mr. Alford apparently thought he had done, and to report the arrangement to the payroll clerk at the office of the superintendent of transportation. But the agreement went unreported, and no approval of the exchange was ever obtained. On October 26, 1987, Mr. Daniels, then superintendent of transportation, and Patricia Holland, route manager for routes including those Mr. Alford drove, Harry Wells and Mr. Alford gathered to discuss the lack of coverage on October 16, 1987. Mr. Alford told everybody present about his plan to drive on a field trip November 6, 1987, which would necessitate his missing the afternoon runs that day. He said (and Mr. Wells was there to deny it, if it had not been true) that Mr. Wells had agreed to substitute for him on the afternoon of November 6, 1987. Eventually this information reached Janet, who logged in Mr. Wells as a substitute for the afternoon runs on November 6, 1987. On the morning of November 6, however, Mr. Alford failed to appear, again without giving notice and without arranging for a substitute. Again it was necessary to make belated arrangements for another driver. Later that morning, Mr. Alford telephoned to report that his wife had locked him out of his house, and that he had lost access to his personal effects. He said that personal problems had prevented his driving that morning, and explained that, without clothes, he would be unable to drive on the field trip that afternoon, as well. In the afternoon, a substitute drove in his stead, without any report of inconvenience to anybody who went on the field trip. On Monday, February 8, 1988, somebody called from Mowat Junior High School with word that school bus No. 340 had not arrived as of quarter past two that afternoon. Ordinarily, and according to schedule, the bus arrived at the school by two o'clock, was loaded by five past, then left Mowat on the first of three runs the bus made each afternoon. When the report that school bus No. 340 had not arrived at Mowat reached the transportation office, Mr. Carter looked in the bus barn out back and saw that the bus was still there. He himself, despite his supervisory position as route manager for the Rutherford district, made two of the three runs for which Mr. Alford was responsible, while another driver drove children home from Hiland Park school. At no time on Monday afternoon did Mr. Alford communicate with the transportation office or with any of his supervisors or with anybody else employed by the school board. When he reported to work on Tuesday morning, he set out in school bus No. 340, without speaking to anybody in the transportation office. His supervisor, Patricia Holland, called Mr. Griffin, the assistant principal in charge of loading and unloading buses at Mowat and asked him to tell Mr. Alford to telephone. Later in the day Mr. Alford did call. He said he had missed work the afternoon before because, coming back from Tyndall Air Force Base, he had had a flat tire. He said he had given a hitchhiker (who he purportedly picked up just before the problem with the tire) 50 cents for a telephone call and asked him to call the school board's transportation office to say he could not get to work. He also said that he was worried about his wife and believed that she had a tumor in her arm. But nobody had telephoned the day before and, for the third time, respondent was orally reprimanded for not reporting for work and failing to give notice beforehand. At a meeting with his supervisors later in February of 1988, Mr. Alford declined to sign a document reciting these three lapses in his attendance record, although assigning the wrong date to one of them. No contemporaneous, independent, written records of counseling on October 16 and November 6 were prepared. On the morning of April 7, 1988, Mr. Tucker of Mosley High School called at half past seven to report that school bus No. 340 was late. As he spoke, it arrived, although it had been due at 6:55 a.m. Unmollified, Mr. Tucker complained that such a late arrival was disruptive because a number of the children ate breakfast at the school and had to be fed, even if they were late. Respondent's supervisors discussed these matters with him that day, and a record was made of the counseling on April 7, 1988. 1988-89 Before students returned for the next school year, all bus drivers hired for the 1988-89 term attended a meeting. In the future, the school bus drivers were told, they should report to the route manager for their district in an emergency or if, for some other reason, they would be unable to appear for work. Rather than making arrangements themselves, they were advised, they should let the route manager contact a substitute. On the morning of October 12, 1988, at quarter of seven, Clarice Rehberg, the route manager for the Bay High School District (which is not the district in which Mr. Alford's route was located) received a telephone call from Mr. Alford, who said that he was in Pensacola, and that his car had broken down. He also told her that school bus No. 340 was in the shop for repair, so that a substitute driver would need another bus. Finally, he let her know that the first scheduled pickup was to have been five minutes earlier at the cemetery on 17th Street. Despite Ms. Rehberg's prompt action, school children on all three runs to Mosley and Hiland Park were late for school that day. At all pertinent times, school bus drivers, including substitutes, were required to make a pre-trip inspection, which sometimes takes fifteen minutes, before driving a school bus in the morning. The following morning at about five o'clock Ms. Rehberg received a second telephone call from Mr. Alford, who again reported that he was calling from Pensacola. He said that he had called Harvey Childress in hopes that Harvey would substitute for him that morning, but that Harvey told him that he was already driving. As the "barn book" reflected, Ms. Rehberg had already scheduled Mr. Childress to drive Mr. Alford's route, morning and afternoon, just as he had done the day before. It was just as well Ms. Rehberg had the foresight to arrange for Mr. Childress to drive that afternoon because Mr. Alford never showed up. On Thursday, October 13, 1988, at about eight o'clock in the morning, Mr. Enterkin, who also drove a school bus for the Bay County School Board, spotted Mr. Alford and two friends in a car waiting at a stop sign. During the ensuing conversation, Mr. Alford told Mr. Enterkin that he was taking the rest of the week off. He also said something about having to go to Pensacola because he could not get the lights fixed on his new car. On Thursday afternoon, Mr. Alford telephoned Mr. Conway, the new supervisor of transportation, telling him that he was at a service station in Pensacola waiting for money to be wired to fix his car. On October 14, at about eight o'clock in the morning, Mr. Alford called and said that he was ready to go back to work. Mr. Conway asked him to come see him before he reported for any further duties as a bus driver. Missing a three o'clock appointment the following Tuesday, Mr. Alford appeared in Mr. Conway's office at three o'clock on Wednesday, saying that he must have gotten the days mixed up. The conversation between the men was short, to the point, and unpleasant. Mr. Conway suspended Mr. Alford with pay. On October 26, 1988, the school board suspended him without pay. The present proceedings followed.
Recommendation It is, accordingly, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0634 Petitioner's proposed findings of fact Nos. 1 through 5 and 7 through 18 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, it was not clear that he needed approval from anybody other than the substitute at that time. Petitioner's proposed finding of fact No. 19 is properly a conclusion of law. Respondent's proposed findings of fact Nos. 1 through 4, 6 through 9, 15, 16, 23, and 26 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 5, 28 through 31, and 32 pertain to immaterial matters. Respondent's proposed findings of fact No. 10, 14, 17 through 20, 22, 27, and 33 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 11, the evidence did not show any understanding that Mr. Wells had agreed to take the morning run on November 6, 1987. With respect to respondent's proposed finding of fact No. 12, there was no morning route to Perry, and he supposedly stayed with the car. With respect to respondent's proposed finding of fact No. 13 the respondent did not give notice he was going to be absent. The hearing officer has not seen a hearing transcript. With respect to respondent's proposed finding of fact No. 21, the weight of the evidence showed he did not place a call to Ms. Holland on October 12, 1988. With respect to respondent's proposed finding of fact No. 24, the route was not "covered" on time. With respect to respondent's proposed finding of fact No. 25, respondent did not tell Ms. Rehberg in advance that he was not going to report for the afternoon run on October 12, 1989. With respect to respondent's proposed finding of fact No. 34, the evidence demonstrated knowing, intentional disregard of instructions to let people know of impending absences far enough ahead of time for other arrangements to be made. Respondent's proposed finding of fact No. 35 is properly a conclusion of law. COPIES FURNISHED: Jack W. Simonson Superintendent of Bay County Schools 5205 West Highway 98 Panama City, Florida 32401 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Franklin R. Harrison Sale, Smoak, Harrison, Sale McCloy & Thompson Post Office Drawer 1579 Panama City, Florida 32401 Pamela L. Cooper Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Does Petitioner, Seminole County School Board (Board), have just cause to terminate the employment of Respondent, Danny Jenkins, for being absent without leave and for failing to follow proper procedures for reporting absences?
Findings Of Fact The Board operates the public schools in Seminole County, Florida. It is responsible for hiring, terminating, and overseeing all employees of the school district. The Board has employed Mr. Jenkins as a bus driver in the transportation services division of the school district since 2006. Their employment relationship is subject to the collective bargaining provisions between the bus drivers' union, Seminole County School Bus Drivers' Association, Inc., and the Board, as reflected in the Collective Bargaining Agreement (Agreement), dated July 1, 2013, through June 30, 2016, and the Board's Transportation Services School Bus Operations Handbook (Handbook), dated July 2014. Mr. Jenkins had regular employment status as established by Article IX, Section 3 of the Agreement. Article XXII, Section 14 of the Agreement requires each bus driver to call in to report an absence in advance of the driver's regular starting time. The "Absentee Procedures" on page 50 of the Handbook require the same procedures. An employee is considered absent without leave (AWOL) for each day the employee is absent from work without reporting the absence using the process agreed to in the Agreement and established by the Handbook. Each day that an employee is AWOL is a separate offense for disciplinary purposes. The Agreement provides for a "progressive step process" of discipline for AWOL employees. The first offense is a reprimand with a one-day suspension. The second is a five-day suspension. The third is a recommendation for termination. The Handbook provisions for AWOL employees are similar to those of the Agreement. Employees who fail to notify dispatch within an hour past their report time are considered AWOL. The first AWOL incident results in a one-day suspension without pay. The second offense causes a five-day suspension. The third offense is cause for termination. Regular employment class employees may be suspended without pay or discharged for reasons including, but not limited to: violation of Board policy; violation of work rules; insubordination; improper use of sick leave; failure to perform assigned duties; and other infractions as set forth by the superintendent. Just cause is required. On August 11, 2014, the first day of the 2014-2015 school year, Mr. Jenkins did not show up for work. He did notify dispatch that he was not coming in. The Board took no disciplinary action for Mr. Jenkins' absence that day. On August 12, 2014, Mr. Jenkins did not report for work and did not call dispatch to report his absence from work. Ms. Murphy, assistant director of Transportation Services, sent Mr. Jenkins a letter notifying him that due to being AWOL on August 12, 2014, she recommended that he be suspended for one day pursuant to the Agreement. On Wednesday, August 13, 2014, Mr. Jenkins did not report for work. He did not call dispatch as the Handbook required. But he did call the School Board's front desk. The Board did not take disciplinary action for that absence. On Thursday, August 14, 2014, Mr. Jenkins did not report for work. He did not call dispatch or make any other form of contact with the Board concerning his failure to report for work on that day. On Friday, August 15, 2014, Mr. Jenkins did not report for work. He did not call dispatch. At 12:08 a.m. that day, he sent a fax addressed to Ms. Murphy saying that he would not be able to come into work. The fax also contained a narrative disputing previous recommendations for discipline, discussing alleged poisoning from fumes on the bus, and giving reasons why he had not taken a physical to obtain a current medical certification as required. On Monday, August 18, 2015, Mr. Jenkins did not report for work. He did not call dispatch or otherwise contact the Board about his failure to report for work. Mr. McKenzie sent Mr. Jenkins a letter on August 18, 2014, stating that Mr. Jenkins must contact him by Thursday, August 21, 2014, to discuss his employment status. Mr. McKenzie also called Mr. Jenkins' home and cell telephone number in order to "help him as best as I can to get him to come to work." Mr. Jenkins did not respond. On Tuesday, August 19, 2014, Mr. Jenkins did not report to work. He did not call dispatch. He sent Ms. Murphy a fax at 9:09 p.m., on August 18, 2014, stating that he would not be able to report for work on August 19, 2014. The fax also claimed the school was not acknowledging his telephone calls. Mr. McKenzie called Mr. Jenkins four times on August 19, 2014, to discuss his absence from work and other work-related issues. Mr. Jenkins did not report to work on Wednesday, August 20, 2015. He did not call dispatch or otherwise communicate with his supervisors about his failure to report for work. Mr. McKenzie called Mr. Jenkins four times on that day to discuss his absence from work. Mr. McKenzie also e-mailed Mr. Jenkins. On Thursday, August 21, 2015, Mr. Jenkins did not report to work. He did not call dispatch an hour before his scheduled runs. He called Mr. McKenzie via telephone later that afternoon after receiving Mr. McKenzie's August 18, 2014, letter. Mr. McKenzie offered to meet with Mr. Jenkins the following day. Mr. Jenkins said he would attend. On Friday, August 22, 2014, Mr. Jenkins met with Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves. The parties discussed, among other things, the fact that Mr. Jenkins was not in compliance with the physical, medical card, training, and related commercial driver license requirements necessary for him to operate a bus. Mr. Lewis also confirmed each of Mr. Jenkins' absences and AWOL status for the dates in August where he did not report for work and did not call dispatch. This is a party admission admissible under the hearsay exception created by section 90.803(18)(a), Florida Statutes. The vast majority of the Board's evidence was hearsay, not subject to a hearsay exception. But Mr. Jenkins' admission to Mr. Lewis, coupled with the fact that Mr. Jenkins' testimony at the hearing basically did not dispute the charges, so much as offer reasons why he could not come to work and reciting many of his concerns, including student verbal and physical abuse on the bus, bullying of his children, and poisoning of some sort related to his employment. To the extent that the testimony of Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins' testimony, the undersigned found Mr. Lewis and Mr. McKenzie more credible. The outcome of the meeting was that Mr. Jenkins was expected to report for work on Monday, August 25, 2014. Immediately after the meeting, Mr. Lewis met privately with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could either resign or come in the following Monday and do everything he needed to do to retain his employment. Mr. Jenkins did not report for work on August 25, 2014. He did not contact dispatch or otherwise communicate with his supervisors or the Board. Mr. Lewis called Mr. Jenkins on Monday after he failed to report for work and offered to pick him up and bring him to work. Mr. Jenkins declined that offer. After Mr. Jenkins did not report for work on August 25, 2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins notifying him of a second AWOL offense and Mr. Lewis's recommendation that Mr. Jenkins be terminated from employment. On Tuesday, August 26, 2014, Mr. Jenkins did not report for work. He did not contact dispatch or otherwise communicate with his supervisors or the Board. That same day, the superintendent sent Mr. Jenkins a letter noting that Mr. Jenkins had been AWOL on August 14, 20, 21, 25 and 26, 2014. The letter also noted that Mr. Jenkins failed to follow the required notice procedures for his absences on August 15, 18, and 19, 2014. The superintendent's letter notified Mr. Jenkins that he was recommending that the Board suspend Mr. Jenkins without pay at the September 9, 2014, Board meeting and that the superintendent would recommend Mr. Jenkins' termination at the October 14, 2014, board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Seminole County School Board, enter a final order finding that there is just cause to terminate Respondent, Danny Jenkins', employment and dismissing him from his position as a regular employee bus driver with the Seminole County School District. DONE AND ENTERED this 13th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of April, 2015.
