The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline her based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and the parties' stipulations, the following findings are made: The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is employed within the School Board's transportation department as a school bus driver. She has worked for the School Board for approximately seven years, and has not been subjected to discipline prior to the incidents leading to this case. At all times relevant to this proceeding, the employment relationship between Respondent and the School Board was governed by the collective bargaining agreement between the School Board and the Seminole County School Bus Drivers' Association, Inc., dated July 1, 1997, through June 30, 2006. Respondent is Hispanic. She was born in New York City, but was raised in Puerto Rico, speaking Spanish. She served as a field medic in the U.S. Army from 1980 to 1987. Respondent understands English, but is more comfortable communicating in Spanish. Kenneth Lewis has been the director of the School Board's Transportation Department since November 2003. Mr. Lewis is black. The Transportation Department consists of approximately 640 employees and 460 buses. Mr. Lewis is the supervising administrator and has three supervisors who report directly to him: the supervisor of routing, the supervisor of fleet services, and the supervisor of operations. Under the supervisor of operations are six area managers, each of whom is responsible for the day-to-day supervision of bus drivers and bus monitors. Raymond Williams and Kathy Dent are two of the area managers in the transportation department. Mr. Williams is black. Ms. Dent is white, and is a recent breast cancer survivor. Both Mr. Williams and Ms. Dent are monolingual speakers of English. Mr. Williams and Ms. Dent were Respondent's immediate supervisors during the 2005-2006 school year. Jennifer McKenzie has been a bus monitor for the School Board for about six years. A bus monitor's job is to team with the driver to assist children with disabilities on the bus. Ms. McKenzie is Hispanic. She speaks Spanish and English, but is more comfortable conversing in Spanish. Ms. McKenzie worked as a monitor on Respondent's bus from 2003 through September 2005. Early in the 2005-2006 school year, Respondent's bus was consistently running behind schedule. Ms. Dent met with Respondent about the situation. Respondent told Ms. Dent that Ms. McKenzie was arriving late to work, causing the bus to run late. Ms. Dent then spoke with Ms. McKenzie, who denied that she had been late coming to work. Ms. McKenzie later reported this conversation to Respondent, who in turn denied blaming the problem on Ms. McKenzie. For the next week, Respondent's bus continued to run late. Ms. Dent went onto Respondent's bus prior to the afternoon run to discuss the situation with Respondent and Ms. McKenzie. Ms. Dent stated that she was getting conflicting stories about the problem, and she needed to clear up matters. Ms. McKenzie stated that she had never caused the bus to be late. Respondent denied ever blaming Ms. McKenzie. Ms. Dent stated that Respondent had blamed Ms. McKenzie several times, most recently that morning when she came to Ms. Dent's office to state that Ms. McKenzie was the cause of the bus being late. Respondent continued to deny blaming Ms. McKenzie. Ms. Dent concluded the meeting by emphasizing to Ms. McKenzie that it was very important that she and Respondent work as a team, and that she was to be on board the bus at her scheduled time in the future. Ms. McKenzie again stated that she was not the cause of the problem, but said she would be there on time. Ms. Dent got off the bus. Both Ms. McKenzie and Ms. Dent testified that Ms. Dent did not raise her voice during this meeting or call Respondent a liar or make any other disparaging comment toward Respondent. After Ms. Dent left the bus, Respondent and Ms. McKenzie continued the conversation. Respondent told Ms. McKenzie that this proved her prior statements that Ms. Dent tells lies. Respondent pointed out that she had denied blaming Ms. McKenzie in front of Ms. Dent, and claimed that Ms. Dent never liked Hispanic people. Respondent stated that when Ms. Dent underwent chemotherapy, it had been applied to her brain rather than her breast and turned her brain to shit, which was why everything she spoke was shit. On September 7, 2005, it began to rain just as Respondent's bus was starting its route. Ms. McKenzie had difficulty closing the roof hatches, and Respondent stopped the bus to help her. Respondent then proceeded to drive the bus into a subdivision under construction, despite Ms. McKenzie's warning that there was no exit, and took several minutes driving through the narrow roads before she could find a way out. The dispatcher, Ronnie Dubose, called Respondent to ask why she was late. Respondent told Mr. Dubose it was because her monitor could not close the roof hatches. This angered Ms. McKenzie because the closing of the hatches had taken much less time than the trek through the subdivision. Ms. McKenzie asked Respondent why she blamed the monitor. Respondent denied having blamed Ms. McKenzie. Ms. McKenzie told Respondent that she heard her tell Mr. Dubose that it was Ms. McKenzie's fault the bus was late. Respondent insisted that Ms. McKenzie had misunderstood, and Ms. McKenzie was just as insistent that she had understood very well. In an effort to change the subject, Respondent began to denigrate Mr. Dubose, stating that "this stupid nigger" didn't even know what he was asking. Ms. McKenzie was upset about the entire situation, and especially about having been blamed once again for the bus running late. Immediately after the bus route was completed, Ms. McKenzie went looking for Ms. Dent to explain what had happened, but could not find her. She spoke to Mr. Williams about the situation, and asked him to explain her version of events to Ms. Dent. The next day, September 8, 2005, Ms. McKenzie was able to meet with Ms. Dent and Mr. Williams after the morning bus run was completed. She explained that the main reason the bus was late on the previous day was Respondent's getting lost in the subdivision construction. Ms. McKenzie indicated to Ms. Dent that there were other issues bothering her regarding Respondent. Ms. McKenzie told Ms. Dent that Respondent had called Mr. Dubose a "nigger," and that Respondent had said not to trust Ms. Dent and that Ms. Dent's chemotherapy had turned her brain to shit. Ms. McKenzie stated that this was not the first time she had heard Respondent call a black co-worker a "nigger." About a week earlier, Respondent had approached Mr. Williams to ask for more time to complete her route, and Mr. Williams declined to do so before checking his route sheet. When Respondent returned to the bus, she called Mr. Williams a "stupid nigger" in the presence of Ms. McKenzie. Ms. McKenzie told Ms. Dent and Mr. Williams that Respondent had referred to Euletha Byrd-Campbell, a black dispatcher, as a "nigger." Respondent also called Mr. Lewis a "stupid nigger" after he refused to allow Respondent to post a flyer about a Hispanic Christmas party for transportation personnel. Ms. McKenzie stated that "nigger" was Respondent's common term for black people, and that she called white people "rednecks." Mr. Williams and Ms. Dent convened a meeting with Ms. McKenzie and Respondent on September 9, 2005. The meeting was conducted in English. At this meeting, Respondent admitted to making the alleged remarks about Ms. Dent's chemotherapy. When Mr. Williams asked if she had ever referred to a fellow employee as a "nigger," Respondent initially denied using that term. Then she stated that she had used the term in reference to Mr. Williams, but only in repeating what another bus driver, Claudia Robles, had said about him. According to Respondent, Ms. Robles became upset and called Mr. Williams a "nigger" when she learned that Mr. Williams had used a gift card she had given him for Christmas to buy pizza at the mall. During the meeting, Respondent gave no indication that she was unaware of the English meaning and usage of the word "nigger." At the conclusion of the meeting, Mr. Williams directed Ms. McKenzie and Respondent to submit written statements summarizing their versions of the facts. Ms. McKenzie submitted her statement on September 13, 2005. Respondent never submitted a written statement. Later on September 9, 2005, Mr. Williams and Ms. Dent met with Claudia Robles. Ms. Robles denied being angry with Mr. Williams about the gift card and denied ever calling him a "nigger." At the request of Mr. Williams, Ms. Robles submitted a written statement on September 14, 2005. At some point during this initial investigation, Ms. Dent learned from another Hispanic bus driver, Jean Rodriguez, that Respondent had made statements about Ms. Dent's condition on a separate occasion from that described by Ms. McKenzie. In the transportation department's compound, there are picnic tables at which the employees sit during the work day. Ms. Rodriguez sometimes sat at the tables with Respondent, and heard Respondent claim to have told Ms. Dent "that the cancer she had on her breast went to her head and it turned like shit." Ms. Rodriguez told Respondent she was wrong and walked away from the table, while Respondent laughed.2 Mr. Williams and Ms. Dent advised Julie Murphy, the supervisor of operations in the transportation department, of the matters discussed at the meetings of September 8 and 9, 2005. Ms. Murphy passed the information along to Mr. Lewis, the director of the transportation department. After learning the details of the allegations, Mr. Lewis decided to conduct an investigation of the matter. He spoke to John Reichert, the School Board's director of human resources and professional standards, and to Brenadette Hardy- Blake, the School Board's equity coordinator, to inform them of his intention to conduct an investigation. Mr. Reichert and Ms. Hardy-Blake agreed that Mr. Lewis should investigate.3 Ms. Dent and Mr. Williams each provided Mr. Lewis with a written statement summarizing the results of the interviews conducted on September 8 and 9, 2005. Mr. Lewis set up a series of interviews, commencing with the complainants, Ms. Dent and Mr. Williams. At the time of these interviews, Mr. Lewis had in hand the written statements filed by all the witnesses, including those of Ms. Dent and Mr. Williams. Mr. Lewis first interviewed Ms. Dent. He noted that she was very upset about Respondent's statements. Ms. Dent stated her intention to file a formal complaint against Respondent. At the hearing, Ms. Dent testified that Respondent's actions interfered with Ms. Dent's ability to act as Respondent's supervisor, because it was clear that Respondent had no respect for her. Ms. Dent felt personally violated by Respondent's comments about her cancer. Further, Ms. Dent believed that Respondent had undercut her authority with the other employees, particularly the black employees, who would not look at the white supervisors with the same respect knowing that Respondent was using the term "nigger" with impunity. Mr. Lewis next interviewed Mr. Williams. The two men discussed Mr. Williams' conduct of the earlier meetings. Mr. Williams stated that he wanted to pursue a formal complaint against Respondent. Mr. Williams did not believe he could continue to supervise Respondent knowing how she felt about him. He believed that Respondent's actions created a hostile work environment and fostered an environment of disrespect for his authority. Finally, Mr. Williams told Mr. Lewis that he could not be confident as to Respondent's treatment of children of color riding on her bus. On September 21, 2005, Mr. Lewis interviewed Respondent.4 At the outset of the interview, Mr. Lewis explained that Respondent had been accused of referring to Mr. Williams as a "nigger" in conversations with other transportation department employees, of making derogatory references to Ms. Dent's chemotherapy, and of telling the other employees not to trust Ms. Dent. Respondent denied calling Mr. Williams a "nigger." She stated that the word was not a part of her vocabulary, and denied even knowing the meaning of the word. Respondent admitted making comments about Ms. Dent, but told Mr. Lewis that she had only said that Ms. Dent's chemo had gone to her brain. Mr. Lewis asked Respondent if she could name anyone to corroborate her version of events. At first she said she could not, but thought more about it and gave Mr. Lewis the names of Ivette Sanchez and Millie Maldonado, two fellow bus drivers. Mr. Lewis interviewed the two bus drivers referenced by Respondent. Ivette Sanchez recalled Respondent telling her not to trust Ms. Dent, but was not sure whether she had heard Respondent make the comments about chemotherapy turning Ms. Dent's brain to shit. Ms. Sanchez was certain she had not heard Respondent refer to anyone as a "nigger." Mr. Lewis did not ask Ms. Sanchez to submit a written statement. Carmen "Millie" Maldonado told Mr. Lewis that she did not recall Respondent making the comments about Ms. Dent's chemotherapy, but that she might have heard Respondent make them at the picnic tables. Ms. Maldonado was similarly hazy regarding Respondent's use of the word "nigger." She might have heard Respondent say the word, but Respondent never said it directly to Ms. Maldonado. Mr. Lewis did not ask Ms. Maldonado to submit a written statement. At the hearing, Ms. Maldonado clarified that the only time she could recall hearing Respondent use the term "nigger" was in describing the controversy and investigation that is the subject of this case. Ms. Maldonado never heard Respondent refer to another person as a "nigger" or a "redneck." On September 22, 2005, Mr. Lewis interviewed Ms. McKenzie, questioning her about the items included in her written statement, which included Ms. McKenzie's version of Respondent's statements about Ms. Dent's chemotherapy and Respondent's references to Mr. Williams as a "nigger." Ms. McKenzie confirmed to Mr. Lewis that she had heard Respondent make the comments about Ms. Dent's chemotherapy turning her brain to shit and had heard Respondent refer to Mr. Williams, Mr. Dubose, and Mr. Lewis5 as "niggers" in conversations with her. Mr. Lewis asked Ms. McKenzie if she could have misheard Respondent using the Spanish term "negro" when she thought Respondent said "nigger." Ms. McKenzie stated that she knew the difference between the two words. She and Respondent spoke to each other mostly in Spanish, and there is no Spanish word for "nigger." Ms. McKenzie was positive that "nigger" was the word used by Respondent. Also on September 22, 2005, Mr. Lewis interviewed Ms. Robles, the bus driver whom Respondent claimed to have been quoting when she used the word "nigger" in relation to Mr. Williams. Ms. Robles denied ever calling Mr. Williams a "nigger," or even becoming angry over Mr. Williams' use of the gift card to buy pizza. She also told Mr. Lewis that she had heard Respondent refer to Mr. Williams and other black employees as "niggers." At the hearing, Ms. Robles testified that, after the Latin Christmas party in 2004, Respondent complained to her that the disc jockey had played nothing but "nigger music." Ms. Robles also testified that she heard Respondent say, "What does that nigger think he is, he's new," after Mr. Lewis refused her request to post the Latin Christmas party flyer. Ms. Robles testified that it was simply part of Respondent's vocabulary to call black people "niggers." Throughout the investigation, Mr. Lewis kept Mr. Reichert and Ms. Hardy-Blake apprised of his findings. At the conclusion of his investigation, Mr. Lewis was convinced that Respondent had made the offensive statements of which she stood accused. Mr. Lewis wrote a memorandum summarizing his investigation and concluding as follows: In summary, based upon the input and/or statements that were received from various persons who had knowledge of the incidents under investigation, it is determined that the driver, Ms. Mirella Hernandez, did: Refer to Mr. Ray Williams as nigger, violating District policy creating a hostile environment. Use the term nigger while referring to Ms. Euletha Byrd-Campbell, violating District policy creating a hostile environment. Use the term nigger while referring to Mr. Ronnie Dubose, violating District policy creating a hostile environment. Made the statement as described by Ms. Jennifer McKenzie, while referring to Ms. Kathy Dent, violating District policy creating a hostile environment. Tell other employees not to trust their Administrator violating rules of ethics, creating a hostile environment. It should also be noted that Ms. Hernandez has previously received less than satisfactory rating on previous assessments related to her ability to maintain a professional relationship and attitude toward colleagues and subordinates. Mr. Lewis submitted his report and copies of all written statements to Mr. Reichert, Ms. Hardy-Blake, Ms. Dent, Mr. Williams, and Respondent. Ms. Dent and Mr. Williams met with Ms. Hardy-Blake, and submitted witness affidavits for her file. After the report was submitted, Mr. Lewis and Mr. Reichert had a lengthy meeting with Deputy Superintendent George Kosmac. At the conclusion of the discussion, Mr. Kosmac concurred with Mr. Lewis' recommendation that Respondent's employment with the School Board should be terminated. Mr. Lewis drafted a letter to Respondent, dated October 7, 2005, which was hand-delivered to Respondent on October 10, 2005, along with Mr. Lewis' report and all of the witness statements collected during the investigation. The letter stated, in relevant part: Ms. Julie Murphy, Supervisor of Operations, reported to me that you had made disparaging and racist comments to other transportation employees concerning Area Managers Kathy Dent and Ray Williams, and other personnel, within the transportation community. It was also stated that you were heard telling employees not to listen to Kathy Dent, circumventing her ability to carry out her duties as an Area Manager. I spoke to you on Wednesday, September 21, 2005, inquiring about the allegations lodged against you. You admitted saying to other employees in reference to Ms. Dent, "the chemo went straight to her head," but denied saying, as alleged by others that, "Kathy's chemo, instead of being to her breast, they applied it to her brain and that is why her brain was burnt and the only thing left was shit in her brain and that is why she only speaks shit." You also denied ever referring to Ray Williams, Euletha Byrd- Campbell, Ronnie Dubose and Kenneth Lewis6 as "niggers," as alleged. You also denied telling other employees not to listen to Ms. Dent. In conversations with Area Managers, Kathy Dent and Ray Williams, they confirmed that you did in fact openly admit to the allegations lodge [sic] against you and went on to state that you made the admissions without remorse. They also said that you admitted, in the presence of Ms. Jennifer McKenzie, to the allegations lodged against you. In conversation with Ms. Jennifer McKenzie, Ms. Claudia Robles, and Mr. Jose Romero on September 21st, 22nd, and October 4th, they all confirmed that they heard you, at some point in time, make one or all of the statements alleged, in reference to the aforementioned parties. As a result of the facts found during our inquiry, it is determined that you knowingly made disparaging statements to other employees in reference to Kathy Dent, Ray Williams, Euletha Byrd-Campbell, Ronnie Dubose and Kenneth Lewis. Your actions constitute conduct that is unbecoming of an employee of the School Board of Seminole County, Florida, and further represents a violation of School Board policies 6.06—- Employee Nondiscrimination and 9.63-— Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees. Therefore, I am recommending to the Superintendent that you be suspended from your duties, and further that your employment with the Seminole County Public Schools Transportation Services, be terminated for the reasons and violations referenced above. After Mr. Lewis' recommendation and accompanying materials were delivered to Respondent, Mr. Reichert met with William Vogel, the School Board's superintendent, to discuss the termination recommendation. Dr. Vogel concurred in the recommendation and directed Mr. Reichert to draft a letter, to be issued over Dr. Vogel's signature, suspending Respondent from her duties and recommending to the School Board that Respondent be terminated from her position. Dr. Vogel's letter, dated December 8, 2005, stated in relevant part: I have received a copy of the letter that you received from Mr. Kenneth Lewis, Director of Transportation Services wherein he has recommended that you be suspended from your duties, and further that your employment be terminated. His recommendation is based upon the fact that you made statements and/or demonstrated conduct that constitutes conduct unbecoming of an employee of the Seminole County Public Schools, and is a violation of School Board policy 6.06 and 9.63. After a careful and lengthy review of the facts surrounding this recommendation, which is supported by the information contained in [the] investigation completed by Mr. Lewis, be advised that I have accepted the recommendation as submitted by Mr. Lewis. Therefore, pursuant to applicable Florida Statutes, be advised that you are suspended with pay effective at the close of business on December 9, 2005. Additionally, be advised that I will file a recommendation with the School Board of Seminole County at their regularly scheduled meeting to be held on Tuesday, January 10, [2006], that you be suspended from your duties without pay effective January 11, 2006, for the reason referenced above. . . . Further be advised that I will file an additional recommendation with the School Board of Seminole County, Florida that your employment be terminated for the reasons and violations identified above. . . . Mr. Lewis handed Mr. Vogel's letter to Respondent on December 9, 2005. A few days later, Paul Sanchez, Executive Director of the Umbrella Organization for the unions representing non-management employees such as Respondent, contacted Mr. Reichert on Respondent's behalf. Mr. Sanchez and another union representative met with Mr. Vogel, Mr. Reichert, and Mr. Kosmac. Mr. Sanchez contended that the entire matter was a misunderstanding centered on Respondent's difficulty with English. He also contended that the investigation was flawed because Mr. Lewis, Mr. Williams and Ms. Dent were intimately involved despite the fact that they were the alleged victims of Respondent's derogatory comments and racial slurs. Mr. Sanchez believed that the investigation became very emotional, and that the situation could be resolved by transferring Respondent. Dr. Vogel agreed to place a hold on his recommendation pending an inquiry by the School Board's legal staff into the issues raised by Mr. Sanchez. Following the legal staff's review of the investigation, Dr. Vogel decided to move forward with his recommendation that Respondent be suspended without pay and terminated as a School Board employee. By letter, dated February 28, 2006, Dr. Vogel informed Respondent's representatives of his intention. At the final hearing, several of Respondent's co- workers testified on her behalf. Jose Romero, an area manager who acted as translator during Ms. McKenzie's interview with Mr. Lewis, testified that he has known Respondent as a co-worker for over four years and never heard her use the word "nigger" or "redneck." Mr. Lewis' report contained the following paragraph: During the interview with Ms. McKenzie, Mr. Jose Romero accompanied her to translate or explain anything she did not understand. When the question of the use of the word nigger was asked to Ms. McKenzie, Mr. Romero said that Ms. Hernandez uses the term when referring to Ray Williams, Euletha Byrd- Campbell and Ronnie Dubose. He heard her use it at the table where many of the Hispanics congregate in front of the dispatch office. At the hearing, Mr. Romero flatly denied making the statements attributed to him in Mr. Lewis' report. Mr. Lewis was not questioned about this contradiction. Mr. Romero testified that he knew Respondent and Ms. McKenzie as co- workers, and considered Ms. McKenzie to be his friend. Mr. Romero attended the meeting in Mr. Lewis' office at the request of Ms. McKenzie, who did not trust the other translators proposed by Mr. Lewis, because they were all friends of Respondent. Ms. McKenzie testified that she trusted Mr. Romero. Ms. McKenzie's testimony allays any suspicion that Mr. Romero changed his testimony to protect Respondent. It appears more likely that Mr. Lewis' report incorrectly attributed the quoted statements to Mr. Romero.7 Mr. Lewis did not request a written statement from Mr. Romero. Carmen Padilla, a bus monitor who worked on Respondent's bus for a little more than one month, testified that she never heard Respondent use the term "nigger." Jose Galindo, a bus driver who shared a household with Respondent for ten years, testified that it is "impossible" that the word "nigger" could be part of Respondent's everyday vocabulary. Mr. Galindo testified that he has never heard Respondent use the word. Respondent and he socialized with black friends, and she never called them "niggers." Mr. Galindo did not recall ever hearing Respondent use the term "redneck." Respondent testified on her own behalf at the hearing. Respondent's version of the incident on the school bus was different from that of Ms. Dent and Ms. McKenzie. According to Respondent, Ms. Dent did not appear interested in hearing what happened to make the bus run late. Ms. Dent had already met with Ms. McKenzie and apparently accepted Ms. McKenzie's version of events. Respondent testified that Ms. Dent told her she lacked common sense and called her a liar, and that it was her anger at being so labeled that caused Respondent to lash out with her comment that the "chemo went up to her head" after Ms. Dent left the bus. Respondent also recalled telling Ms. McKenzie that what Ms. Dent had said was "bullshit." Respondent testified that, at the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she told Ms. Dent that she meant no harm by her comments, that she was merely striking out in anger. Respondent tried to explain that the source for "the comment about her chemo going to her head" was a "very famous [Latino] song" with a lyric that says "the bilirubin goes up to your head."8 Ms. Dent was screaming at Respondent, telling her that if she had said she was sorry, Ms. Dent would have forgiven her. Respondent testified, "How can you say that you're sorry to a person that is screaming, that is agitating things, and that I see there are lies?" Respondent could not remember ever telling people not to trust Ms. Dent. At the meeting, Respondent felt cornered. She testified that she was never informed that she was entitled to have a union representative present. Respondent could not recall who they said was accusing her of using the word "nigger," but Respondent brought up the name Claudia Robles. Mr. Williams asked Respondent if she had ever called him a "nigger," and Respondent denied having done so. Respondent told Mr. Williams that she had used the word when translating a letter for another bus driver. The letter apparently described a situation involving Mr. Williams and this other driver, and referred to Mr. Williams as a "nigger." Respondent testified that Ms. Dent threatened her, saying that "we're gonna take this all the way . . . I'm going to make sure that you get suspended, I'm going to do everything possible to get you suspended." From this statement, Respondent surmised that she would have a meeting with Mr. Lewis in the near future, after which she would be fired. Respondent denied that Mr. Williams or Ms. Dent ever asked her to submit a written statement. Respondent testified that, after the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she went to the picnic tables where the transportation department employees gathered between shifts. Everyone at the table knew something was going on, and people asked Respondent why she had been called in for a meeting with her supervisors. Respondent then told them she was being accused of using the word "nigger," and of making the comments concerning Ms. Dent's chemotherapy. Respondent could not remember who called her in to meet with Mr. Lewis on September 21, 2005. She walked into the room and saw that Mr. Lewis, Ms. Dent, and Mr. Williams were already there. She was not told that she could bring a union representative to the meeting, and was not offered a translator. Mr. Lewis first questioned Respondent about her driving, then asked about the "nigger" and chemotherapy comments. Respondent testified that she read from a letter she was composing, to make Mr. Lewis "see my culture, where I come from, something like that." Respondent never finished the letter and did not submit it to Mr. Lewis. Respondent told Mr. Lewis that she didn't know the meaning of the word "nigger," and at the hearing, claimed she was not sure if she knew it was a racial slur at the time of the meeting with Mr. Lewis.9 She testified that during seven years in the Army, she never heard anyone say the word. She lived in Alabama, Georgia, and Texas, and never heard anyone say "nigger." Respondent testified that she later had a second meeting with Mr. Lewis regarding allegations by Ms. Robles that Respondent was harassing her. Respondent testified that during this meeting, Mr. Lewis asked her if she had called him a "nigger." Respondent denied the allegation, and tried to make Mr. Lewis understand that Ms. Robles was the person who used the word "nigger." Respondent testified that Ms. Robles used the word "nigger" several times, on social occasions away from work. Respondent stated that Ms. Robles' pronunciation was so poor that the word was unintelligible. Respondent understood what Ms. Robles was saying only when another woman chastised Ms. Robles for using the word. Respondent testified that Ms. Robles also used the word "redneck." Respondent testified that she never referred to any transportation department employee as a "nigger." The word is not part of her day-to-day vocabulary. Respondent uses the Spanish word "negro" "all the time, because that's the word I was raised with." The term simply denotes color, and does not carry the derogatory meaning of "nigger." Respondent's testimony is not persuasive as to the issue of her use of the word "nigger." The greater weight of the evidence supports the finding that Respondent did refer to Mr. Williams, Ms. Byrd-Campbell, Mr. Dubose, and Mr. Lewis as "niggers," that she did so because the word "nigger" was simply her manner of referring to black people when they angered her and were not present to hear, and that she knew the derogatory meaning of the word. Respondent's changing story as to when she learned the meaning of the word did not enhance her credibility. She initially denied ever having used the term "nigger," then admitted to using the word when quoting Ms. Robles, then later claimed not to have known the meaning of the word. The fact that several employees claimed not to have heard her use the term does not establish that Respondent never used the term. At most, it establishes that there were some fellow Hispanic employees with whom Respondent did not feel comfortable in indulging her use of the word. Respondent's testimony, as well as that of her supportive witnesses, does raise questions about the investigative process employed by Mr. Lewis. Respondent testified that Mr. Lewis never asked her to submit a written statement, testimony that is somewhat corroborated by the fact that Mr. Lewis did not ask Ms. Sanchez, Ms. Maldonado, or Mr. Romero to submit written statements. Further, Mr. Romero credibly denied having made the statements attributed to him in Mr. Lewis' report. Taken together, these facts establish that Mr. Lewis' report functioned more as a brief for the prosecution than as an even-handed investigative summary. Nonetheless, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. All of the relevant witnesses testified in person at the hearing, and the undersigned was able to make an independent judgment as to their veracity and credibility, without reliance upon Mr. Lewis' report. School Board Policy 6.06, adopted July 19, 2005, is titled "Employee Nondiscrimination Policy." Its stated purpose is as follows: The Seminole County School Board is committed to providing educational and work environments free of all forms of harassment or discrimination. No employee or applicant for employment shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination or harassment in any program, activity, employment, or conditions of employment in Seminole County Public Schools on the basis of race, color, national or ethnic origin, gender, disability, marital status, age, religion, political or religious beliefs, or any other basis prohibited by law. Nor shall any person be subjected to retaliation for reporting or complaining of alleged discrimination or harassment or participating in any way in the investigation of such allegations. The employees of Seminole County Public Schools shall not engage in such discrimination or harassment, and such conduct is also prohibited for any third party while participating in any activity sponsored by Seminole County Public Schools. The definition of "racial harassment" is set forth at School Board Policy 6.06 II.B. as follows: Racial harassment is verbal (oral or written) or nonverbal (physical or graphic) conduct that degrades or shows hostility or aversion toward any employee based upon race, color or national origin when such conduct substantially interferes with the employee's job performance or the terms and conditions of his/her employment, or creates an intimidating, hostile, or offensive work environment. Racial harassment, as defined above, may include but is not limited to the following conduct: Epithets and slurs; Negative stereotyping; Threatening, intimidating, or hostile acts; or Written or graphic material that shows hostility or aversion toward an individual or group. There can be little question that "nigger" constitutes a racial epithet and/or slur, and that Respondent's verbal conduct in using the term degraded or showed hostility toward fellow employees based upon race.10 The more difficult question is whether Respondent's verbal conduct created "an intimidating, hostile, or offensive work environment." Respondent never used the term "nigger" directly against the persons at whom the epithet was directed, and she was not in a supervisory capacity as to those persons, two factors that militate against terming Respondent's actions "intimidating" in the common workplace sense of the term. However, the testimony of Mr. Williams as to the hostile and offensive work environment created by Respondent's verbal conduct is persuasive. Mr. Williams credibly believed that his effectiveness as a supervisor was undermined by Respondent. He felt hurt and disrespected, and did not think he could continue to work with Respondent. The testimony of Ms. Dent was also persuasive. Though she was not the target of the racial epithet, Ms. Dent credibly believed that her authority over and respect from the department's black employees could only be undermined if she allowed Respondent to use the term "nigger" openly and with impunity.11 It is found that Respondent's verbal conduct constituted "racial harassment" as defined in School Board Policy 6.06 II.B. Employee and student training procedures are set forth in School Board Policy 6.06 IV., as follows: IV. Training All employees and students shall receive training each year to insure that the entire education community understands this policy, what constitutes prohibited harassment, discrimination, or retaliation and the consequences for engaging in such conduct. Each principal and cost center supervisor shall ensure that this policy is specifically reviewed with employees, including administrators, instructional personnel, and noninstructional personnel, with volunteers, and with students on an annual basis. It is the responsibility of each supervising administrator in the school system to ensure that this policy is reviewed with all other employees over which he/she directly or indirectly has supervisory authority. Employees must clearly understand that conduct believed by them to constitute harassment should be reported to the principal, supervising administrator, or the District Equity Coordinator. They also must clearly understand that if an employee complains to them regarding alleged harassment, they should immediately refer that employee to the principal, the supervising administrator, or the District Equity Coordinator for appropriate action under this policy. Any personnel who may be called upon to conduct investigation must clearly understand how to do so, including the circumstances in which immediate or interim measures are necessary or appropriate. All employees, as well as students and volunteers, also must clearly understand that they and others supporting them will not suffer any retaliation or recrimination on account of their reporting of any alleged harassment or on account of participating in an investigation of any alleged harassment. Respondent contends that the annual in-service training sessions provided to transportation department employees by the School Board were inadequate to place Respondent fully on notice as to the meaning of "racial harassment." Respondent admitted that she attended such a training session on July 25, 2005, of which a videotape was admitted into evidence. The "training session" was a small part of a two-hour transportation department general meeting to prepare for the 2005-2006 school year. Mr. Lewis presided over the meeting, and recognized some drivers for perfect attendance and gave out safe driving awards. Mr. Vogel and Mr. Kosmac addressed the assembly. Other School Board employees gave presentations on issues including road closings, field trips, payroll and union negotiations, training, care for exceptional students, the employee assistance program and employee benefits. After all of these presentations, Mr. Lewis announced that a video was about to be shown dealing with sexual and racial harassment and fraternization. He told the assembly that "we are required" to show the video, and that each employee present would be required to sign a document verifying that he or she had watched the video. The video was started without further introduction. A title on the screen indicated that it was a taped School Board training session from April 2005 on the topic of sexual and racial harassment and fraternization.12 The presenter identified herself as Sally Jenkins from the professional training department. Ms. Jenkins commenced her presentation with a discussion of sexual harassment, setting forth the definition and examples of "quid pro quo" sexual harassment and "hostile environment" sexual harassment. As Ms. Jenkins was going through examples of what constitutes "hostile environment" sexual harassment, the tape abruptly jumped into the middle of her discussion of racial harassment. Lost in this jump was any discussion of examples of racial harassment. It was unclear whether the jump was caused by a problem in duplicating the tape that was presented into evidence, or whether this was actually what was shown to the assembly on July 25, 2005.13 Respondent complains that the "training" provided by the School Board was entirely inadequate to meet the requirements prescribed in School Board Policy 6.06 IV. The entire presentation was in English, and no examples of what constitutes a "hostile environment" or "racial harassment" was provided in the video presentation. Respondent contends that the presentation was not designed to ensure that Spanish- speaking employees "clearly understand" what constitutes prohibited harassment or discrimination. Respondent correctly observes that this taped training presentation was treated in a pro forma manner at the July 25, 2005, assembly. If the videotape in evidence correctly conveys what was shown to the assembly, much of Ms. Jenkins' presentation on racial harassment was not shown. However, these objections would give rise to a defense only if Respondent could plausibly claim that she relied on the training for her knowledge of the matters giving rise to this case. In other words, Respondent would have to claim she was unaware that "nigger" was a racial epithet or that promiscuous use of the term "nigger" in the workplace would be deemed hostile and offensive by her co-workers, and that she was completely reliant on the School Board's training to be made aware of these matters. Respondent's contention that she did not know the meaning of "nigger" has been rejected. Whatever the inadequacies of the training provided at the July 25, 2005, assembly, Respondent cannot plausibly claim them as a defense in this case. The guidelines for School Board investigations of harassment or discrimination are set forth at School Board Policy 6.06 VI., as follows, in relevant part: Guidelines for Investigations At any time, the District Equity Coordinator may, in his/her discretion, appoint an appropriate person to investigate a report of harassment or discrimination. All such investigators will be appropriately trained in how to conduct an investigation pursuant to this policy and will not be persons alleged to have any involvement in the situation at issue. As found above, Mr. Lewis was the district equity coordinator prior to becoming director of transportation. As district equity coordinator, Mr. Lewis received extensive training in the substantive areas of harassment and discrimination and in the proper procedures for conducting investigations. Aside from his status as one of the persons whom Respondent allegedly called a "nigger," there is no question that Mr. Lewis was "an appropriate person to investigate" the allegations brought to him by Ms. Dent and Mr. Williams.14 The relevant portion of School Board Policy 6.06 VII, relating to the School Board's grievance procedure, is as follows: Grievance Procedure The following steps will be followed if an employee feels that he/she has experienced prohibited discrimination or harassment at work or during an activity sponsored by Seminole County Public Schools: Level I: If the employee believes that he/she has been discriminated against or harassed, the employee should file a written complaint with his/her building principal, supervising administrator, or the District Equity Coordinator. If the building principal or supervising administrator is allegedly involved, the complaint should be filed directly with the District Equity Coordinator. If the complaint is filed with the principal or supervising administrator, he/she shall immediately forward a copy to the District Equity Coordinator. The principal, the administrator, or the District Equity Coordinator must then schedule a conference with the employee to find out more about the complaint and explore possible resolutions. The conference should be held as soon as possible in light of the nature of the allegations and, in any event, must be held within five (5) working days of the date of filing. (Emphasis added) Respondent contends that the underscored language should have required Mr. Lewis to recuse himself from the investigation due to his personal involvement in the allegations against Respondent. Ms. Hardy-Blake testified that the School Board's interpretation of the quoted language is that a supervisor should not conduct the investigation only where he or she is the alleged perpetrator of the harassment or discrimination. Nothing in the policy prevented Mr. Lewis from conducting the investigation. As suggested above, many of Respondent's complaints about the process would have been rendered nugatory had Mr. Lewis stepped aside upon learning that Respondent was alleged to have called him a "nigger." Mr. Lewis credibly testified that the allegation had no effect on his conduct of the investigation, but Ms. Hardy-Blake or Mr. Reichert should have considered the appearance of allowing the alleged subject of an inflammatory racial epithet to continue as the lead investigator. However, as found above, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. This finding is based on the sworn testimony and demeanor of the witnesses at the final hearing, not on the statements in Mr. Lewis' report. Respondent's comments about Ms. Dent, though outrageous and cruel, were not violative of the policy against racial harassment. The School Board has alleged that Respondent's conduct violated School Board Policy 9.63, titled "Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees." The policy provides as follows, in relevant part: The School Board recognizes that education of children is a process that involves a partnership between a child's parents, teacher, school administrators, and other school and School Board personnel. The School Board recognizes that parental participation in their child's educational process through parent/teacher conferences, classroom visitation, serving as a school volunteer (Dividend), serving as a field trip chaperone, PTA participation, and other such service is critical to a child's educational success. For that reason the School Board welcomes and encourages parental participation in the life of their child's school. However, from time to time parents and other visitors to schools and District facilities sometimes act in a manner that is disruptive to a school or other District facility and which is threatening and/or intimidating to school and District employees. The purpose of this policy is to provide rules of conduct for parents, other visitors to schools, and District employees which permit and encourage participation in school or District activities, while at the same time enabling the School Board to identify and deal with those behaviors which are inappropriate and disruptive to the operation of a school or other District facility. It is the intent of the School Board to promote mutual respect, civility, and orderly conduct among district employees, parents, and the public. It is not the intent of the School Board to deprive any person of his or her right to freedom of expression. The intent of this policy is to maintain, to the greatest extent reasonably possible, a safe, harassment-free workplace for teachers, students, administrators, other staff, and parents and other members of the community. In the interest of presenting teachers and other employees as positive role models, the School Board encourages positive communication and discourages disruptive, volatile, hostile, or aggressive communications or actions. Expected Level of Behavior School and School District personnel will treat parents and other members of the public with courtesy and respect. Parents and other visitors to schools and District facilities will treat teachers, school administrators, other school staff, and District employees with courtesy and respect. Unacceptable/Disruptive Behavior Disruptive behavior includes, but is not necessarily limited to: Behavior which interferes with or threatens to interfere with the operation of a classroom, an employee's office or office area, areas of a school or facility open to parents/guardians and the general public and areas of a school or facility which are not open to parents/guardians and the general public; Using loud and/or offensive language, swearing, cursing, using profane language, or display of temper; Threatening to do bodily or physical harm to a teacher, school administrator, school employee, or student regardless of whether or not the behavior constitutes or may constitute a criminal violation; Damaging or destroying school or School Board property; Any other behavior which disrupts the orderly operation of a school, a school classroom, or any other School Board facility; or Abusive, threatening, or obscene e- mail or voice mail messages. The remaining sections of the policy deal with the procedure by which a parent may file a complaint as to a staff member's behavior, the authority of school personnel to direct disruptive persons to leave school or School Board premises, the authority of School Board personnel to deal with members of the public who are verbally abusive, and the procedure by which School Board employees should deal with abusive, threatening or obscene e-mail or voice mail messages. Respondent correctly observes that School Board Policy 9.63 makes no mention of employee discipline for failure to abide by its provisions. Read as a whole, the Civility Policy seems generally directed at the interactions of School Board personnel with the public, and more particularly at protecting School Board personnel from abusive language and behavior by members of the public. Absent some clearly defined enforcement mechanism as to employees, the Civility Policy appears to be an aspirational rather than a formal disciplinary standard. This finding, however, begs the question of whether Respondent's conduct toward Ms. Dent may be cause for discipline under the general heading of "conduct unbecoming" a School Board employee, pursuant to case law precedent. In that sense, School Board Policy 9.63 II may be read as setting forth examples of behavior that fall into the category of "conduct unbecoming" a School Board employee, thereby giving the employee notice that such behavior is unacceptable and subject to discipline. This issue is resolved in the Conclusions of Law below.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Seminole County School Board, issue a final order that terminates the employment of Respondent, Mirella Hernandez. DONE AND ENTERED this 16th day of November, 2007, 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 16th day of November, 2007.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue 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 in this case is whether just cause exists for Petitioner to terminate Respondent from his job as a school bus operator.
Findings Of Fact Petitioner employed Respondent as a school bus operator since October 26, 1988. His performance was generally satisfactory, except that he sometimes failed to inform Petitioner when he was going to miss work or be late. Respondent's performance assessment for the 1992-93 school year, which was dated March 8, 1993, states that Respondent was effective in all areas except "demonstrat[ing] an energetic and enthusiastic approach to work, avoid[ing] excessive or unnecessary use of sick/personal leave." In this area, he received an mark of "inconsistently practiced." On November 30, 1993, Reta Uhrich (now Bingmer), who was Respondent's supervisor, issued a written reprimand to Respondent. The reprimand states that he was a "no show, no call" on the morning of November 30 for the second time. The first time was the morning of November 10. Respondent wrote on the reprimand: "was sick--no excuses should have called." Respondent's performance assessment for the 1993-94 school year, which was dated March 9, 1994, reflects that Respondent was effective in all areas but the one noted the previous year and three others. He received "inconsistently practiced" under "report[ing] to work as expected, unless an absence has been authorized"; "report[ing] to work on time as determined by scheduled route schedules"; and "complet[ing] necessary reports accurately and submit[ting] them on time." Respondent wrote on this assessment: "Late to work is because of a bad tooth which is not repaired." Ms. Bingmer issued a written reprimand to Respondent at the beginning of the 1994-95 school year. Dated August 26, 1994, the reprimand states that on August 25, 1994, Respondent was 35 minutes late; on August 24, 1994, Respondent called 20 minutes after he was due at his first stop to announce that he had overslept and would come to work for his second and third routes; on August 23, 1994, Respondent did not show up or call in the morning, showed up for the afternoon runs without first calling, and promised Ms. Bingmer that he would be on time in the future. The reprimand notes that Respondent claimed each time that he had a problem with a bleeding ulcer and could not afford medication. The reprimand warns that the next offense may result in a three- day suspension without pay. Ms. Bingmer issued Respondent a written reprimand on October 4, 1994, due to Respondent's failure to report for work or telephone to report off work for the entire day of September 23, 1994, and the morning of September 30, 1994. The reprimand states that Respondent assured Ms. Bingmer that his medical and personal problems were under control and that he would be at work each day on time. The reprimand concludes by noting that Ms. Bingmer had recommended that Respondent be suspended without pay for three days, but her supervisor ordered only verbal and written reprimands. The reprimand warns that any further problems could result in a "much stronger result." On October 25, 1994, Respondent, Ms. Bingmer, and others attended a predetermination conference. Respondent assured the representatives of Petitioner that he would improve his attendance. However, on November 10, 1994, Respondent called at 6:10 am and said his car would not start. Although this was notice of his absence, the notice was late. On November 18, 1994, Respondent called and said he would be out due to a toothache. On November 29, he called again, saying he would not be in because his car would not start. On December 2, 1994, Ms. Bingmer learned that the driver's license of Respondent had been suspended. She instructed him to go to the driver's license office immediately and resolve the problem, which involved his insurance. Respondent went to the driver's license office the same day and resolved the problem. However, he did not contact anyone representing Petitioner on the following workday, nor did he show up for work. Late in the day, he left a note for Ms. Bingmer stating that he would call early the following day and see her. But he neither called nor reported to work the following day, nor the day after that. The major problem created by Respondent was that he either gave no notice when he was going to miss or be late for work, or he gave inadequate notice. With notice, Petitioner could obtain a substitute bus driver. Without notice, children were left standing at their bus stops waiting needlessly for their bus. The employment contract provides that Petitioner may terminate an employee for "just cause." Petitioner has demonstrated that just cause exists for the termination of Respondent.
Recommendation It is hereby RECOMMENDED that the School Board of Lee County enter a final order terminating Respondent. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 30, 1995. COPIES FURNISHED: Daniel H. Kunkel Kunkel Miller & Hament Southtrust Bank Plaza Suite 785 1800 Second Street Sarasota, FL 34236 Robert J. Coleman Coleman & Coleman P.O. Box 2089 Ft. Myers, FL 33902 Patrick E. Geraghty Patrick E. Geraghty, P.A. P.O. Drawer 8 Ft. Myers, FL 33902-0280
The Issue The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
Findings Of Fact Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff. For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years, Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints. In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school. In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began videotaping the director from the street to document what Respondent viewed as illegal behavior. The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school. However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds. Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian. Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information. Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands. While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids, who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year. The problem with the school bus driver began in 2002. Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus. Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored by the superintendent, Respondent contacted a school board member and asked for a meeting. Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation. The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children. After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop cutting through the occupied classroom--a directive that Respondent repeatedly ignored. Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington. On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting. The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations. Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them. Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial. Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem. By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70. By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment. Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004. COPIES FURNISHED: John Padget, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott E. Siverson Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Scott C. Black Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Diane Scott Post Office Box 501586 Marathon, Florida 33050
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
The Issue Whether just cause exists to terminate Ms. Ivey from her employment with the Pinellas County School Board.
Findings Of Fact In 2005, Ms. Ivey was hired by the School Board to work as a school bus driver (bus driver). The position of school bus driver is covered by the 2012-2015 Collective Bargaining Agreement between the School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). One of the many requirements to operate a Pinellas County school bus is to undergo a medical/physical examination every year. Among the physical requirements, bus drivers are to maintain at least 20/40 vision in each eye (with or without corrective lenses). On Wednesday, January 23, 2013, Ms. Ivey underwent her yearly physical examination (exam). As a result of this exam, Ms. Ivey's "Work Status" was "PE on hold," meaning Ms. Ivey was not able to work as a bus driver until some corrective measures involving her eyesight were obtained. Ms. Ivey completed her morning bus routes prior to her exam on January 23. After her exam, Ms. Ivey called in sick and did not complete her afternoon school bus routes. On January 24, Ms. Ivey completed both her morning and afternoon bus routes without incident. However, she took sick leave for the remainder of January 2013 (five work days). Ms. Ivey's first day back from her sick leave was February 4, 2013. Each school bus is equipped with a global positioning system (GPS) monitoring device. Once the school bus is turned on the GPS automatically records the school bus position every 30 seconds. The GPS also records other activities that the school bus performs, e.g., when the amber caution lights are turned on or off, when the red stop lights are turned on or off, when the entrance door opens or closes, etc. Because of the cost of fuel, the School Board's policy is that no school bus idles for more than five minutes. If a bus must idle for more than five minutes, the bus driver is required to turn off the bus until it needs to move. Each school bus is required to stop at each assigned bus stop whether or not a student is present. This is to maintain the published schedule for subsequent school bus riders. Each school bus is also equipped with a two-way radio for constant communication with Petitioner's transportation dispatchers. In the event of an incident (or accident), there is an additional emergency channel for use by the dispatcher and the affected school bus driver. Prior to each school year, school bus drivers are provided training in how to handle an incident (or accident). When an incident occurs, the driver is to immediately contact the transportation dispatcher, remain at the scene of the incident, ensure the safety of the students, and cooperate fully with the investigation. The bus driver is to complete an incident report and turn it in to the transportation division before the end of the incident day. The school bus that Ms. Ivey drove on February 4, 2013, was equipped with the two-way radio and the GPS. Ms. Ivey's published/authorized school bus route (for the middle school pick-up) started at 8:15 a.m. each morning when she was to pick up her riding assistant, Courtney McClendon,3/ at 102nd Avenue and Seminole Boulevard. This stop was in a large parking lot, close to a Little Caesar's restaurant (restaurant). The second bus stop, where the first student was to be picked up, was located at 97th Street North and Lake Seminole Drive East (corner location). Without the School Board's permission or authorization, Ms. Ivey unilaterally changed her school bus route to begin with the student pick-up at the corner location. On February 4, Ms. Ivey began her middle school bus route at the corner location. According to the GPS, Ms. Ivey entered the corner location neighborhood at 8:32 a.m., and could not have been at the designated corner location bus stop at 8:18 a.m. The student rider was not at the corner location when the school bus arrived. There was no indication, via the GPS, that either the amber caution or red stop lights were activated for this stop, or that the entrance door opened or closed to allow a student to enter the bus. Ms. Ivey turned the school bus onto 97th Street and stopped at the red light at 102nd Avenue (stop light corner). As Ms. Ivey was looking left (in order to turn right), she heard a knock on the school bus door, but did not see the student. Ms. Ivey completed the right-turn onto 102nd Avenue West and then, in her right rear-view mirror noticed a student falling down. Ms. Ivey did not immediately stop the school bus, but drove to the restaurant approximately two minutes away. There, Ms. Ivey turned on her amber lights and opened the door for Ms. McClendon to board the school bus. While at the restaurant, Ms. Ivey radioed Petitioner's transportation dispatcher that she might have hit a student. Ms. Ivey left the restaurant and drove back to the corner location. Despite having a two-way radio on board the school bus and repeated attempts by the dispatcher to contact her, Ms. Ivey and the dispatcher failed to communicate again for over 45 minutes. Upon notification of the incident, the transportation dispatcher switched to the emergency frequency; however, Ms. Ivey stayed on the regular two-way radio frequency. Two transportation supervisors were immediately dispatched to investigate the incident at the restaurant, as this was the location where the incident was reported. Once they arrived, the supervisors were unable to locate the school bus, Ms. Ivey, or Ms. McClendon (the trio) at or near the restaurant. In an effort to locate the trio, the supervisors traveled to several more school bus stops, but only found students waiting for the school bus.4/ After searching for over 45 minutes, the supervisors finally located the trio at the corner location. At that time the transportation supervisors determined that the stop light corner location was where the incident actually occurred. One week after the incident, on February 11, Ms. Ivey completed and turned in the "DRIVER'S REPORT OF INCIDENT." Petitioner's field operations supervisor, Ms. Cross had to make repeated requests to Ms. Ivey to get her to turn in the report. On three separate occasions, Ms. Ivey was noticed to appear at the Office of Professional Standards to answer questions regarding the January medical issue and the February 4th incident. At the meeting on February 20, 2013, Ms. Ivey refused to answer questions about either matter. During the second meeting on February 28, shortly after the meeting began, Ms. Ivey asked to use the restroom, left the room, and never returned to complete the meeting. Although she was noticed for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey did not arrive for that meeting until after 3:00 p.m. During this third meeting, Ms. Ivey again refused to answer questions about either matter. Ms. Ivey's employment disciplinary history with the School Board is as follows: 02/08/10 Ms. Ivey received a "Conference Summary" for failing to correct performance deficiencies; 02/18/10 Ms. Ivey received a Conference Summary" for failing to comply with board policy, state law, or appropriate contractual agreement; 10/20/11 Ms. Ivey received a "Caution" for failing to comply with board policy, state law, or the appropriate contractual agreement and misconduct; 05/23/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; 12/15/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; and 02/20/13 Ms. Ivey received a "Conference Summary" for failing to perform the duties of the position and failing to correct performance deficiencies. Despite repeated opportunities to provide her version of the events, Ms. Ivey declined to present her case in a manner that would warrant serious consideration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner terminate Ms. Ivey's employment as a school bus driver as a consequence of her repeated violations of School Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Ms. Ivey's termination from employment as a school bus driver. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2013.
The Issue The issue in this proceeding is whether Petitioner has just cause to terminate Respondent's employment for an altercation he was involved in that occurred on his bus.
Findings Of Fact Based on the evidence credited by the undersigned at the hearing, the undersigned makes the following findings of material and relevant fact: Wint has been employed by the School Board as a school bus driver for approximately 15 years. There was no evidence presented that Wint had been disciplined for any prior instances of misconduct as a bus driver. Wint is covered as an employee under the Collective Bargaining Agreement of the American Federation of State, County, and Municipal Employees, Local 1184 (CBA), which provides that rights thus reserved exclusively to the School Board and the Superintendent . . . include . . . separation, suspension, dismissal and termination of employees for just cause. Pet. Ex. 1, § 3. School Board Policies 4210, 4210.01, 4213, and 8600 were entered as exhibits and apply to Wint's employment.1/ Pet. Exs. 2–5. The School Board issued a Handbook for School Bus Drivers and Bus Aides (Handbook) for the 2017-2018 school year, which applies to Respondent's employment. The Handbook was admitted into evidence.2/ Pet. Ex. 6. School Bus Incident on October 10, 2017 To summarize, on October 10, 2017, Wint was transporting a large group of middle school students on his school bus. Due to a disruption by one of the students, Wint felt it was necessary to pull the bus over. Wint stopped the bus and went to the back to confront a 13-year-old, 8th-grade male student who had intentionally and unnecessarily opened the bus's emergency window, setting off the bus alarm.3/ A video of segments of the confrontation was recorded by students and entered into evidence. Pet. Exs. 15 and 16. Petitioner's Exhibit 16 is video coverage of the first part of the physical altercation between Wint and the male student. Petitioner's Exhibit 15 is video coverage of the second part of the physical altercation, after both had moved back down the bus aisle to return to their respective seats on the bus.4/ With respect to the details, the incident unfolded as follows: while the bus was in motion, the male student left his assigned seat without permission, went to the back of the bus, and opened the emergency exit window, causing the bus's audible alarm to sound.5/ Wint was required to immediately stop the bus to address the emergency alarm going off. Instead of directly calling dispatch as stated in the Handbook, Wint went to the back of the bus to confront the student, order him back to his assigned seat, assess the situation, and determine the best course of action. Pet. Exs. 15 and 16; Pet. Ex. 6, § 10.06(c). Wint went to the back of the bus and confronted the male student. The altercation started when the male student rose up slightly out of the bus seat and punched Wint in the stomach several times. This evidence was uncontradicted. No other testimony or documents were offered to rebut this evidence. (These initial moments of the confrontation are not on the videos.) The first part of the cellphone video is shot from an elevated angle from the rear bus seat and starts by showing the two locked up, struggling in the back of the bus. Wint has his hands on the male student pulling him up forcefully and attempting to push the male student back up the aisleway to the front of the bus where his seat was located, and away from the other students. The male student pulled free from Wint's grasp and started up the aisleway. However, he turned around immediately and tried to shove Wint. Another male student interceded and restrained the male student by temporarily putting him in a headlock. When this occurred, Wint held back in the aisleway near the rear of the bus, watching and collecting himself. After the initial confrontation in the back of the bus, the second cellphone video picks up the action from a different angle (shooting from the middle of the bus towards the back). Several other students intervened to keep Wint and the male student separated. The male student tried to start up the altercation again and attempted to break through several students to get back at Wint. Wint is standing cornered in the back of the bus with his back to the emergency exit. While all this is going on, there is general pandemonium inside the bus with the other 20 to 25 students watching, yelling, or jeering at the scene. Notably, several of the other students appear frightened or alarmed and are very close to the altercation as it unfolds. The mid-bus cellphone video shows the male student turning around to head back up the bus aisleway. The male student is visibly angry, very upset, and is seen forcefully pounding his fists together defiantly as he walks. Wint is off camera, but the undersigned reasonably infers that Wint is behind the male student following him back up towards the front of the bus. As he walks up the aisleway in front of Wint, in an overt display of strong aggression and uncontrollable anger, the male student leans across a bus seat and violently punches a school bus window with his clenched fist.6/ Pet. Ex. 15. As Wint came down the narrow aisle behind the student and attempted to squeeze past him to continue to the driver's seat, Wint accidentally brushed against the male student.7/ At that point, the video shows the male student rapidly wheel around and the two begin to tussle, hands on each other, in the bus seat. Wint backs the male student up into the bus seat, closer to the window. Wint has both hands near, but not on, the neck area of the male student. There is no punching or swinging, just restraining and controlling. The more persuasive and credible evidence does not support the School Board's claim that Wint was intentionally choking the student with a pressure hold around his neck, nor holding the male student around the neck with his hands. Rather, the more persuasive evidence shows, and the undersigned finds, that Wint is attempting to control and restrain the student by holding him firmly by the collar of his jacket/sweatshirt.8/ At the end, when a female student jumped in to separate the two, Wint abruptly released his hold and headed back to his driver's seat. The cellphone video ends at that point. Although the evidence was conflicting, it revealed, and the undersigned credits, that Wint had previously notified the Miami-Dade County School District (District) in writing that this particular male student had been repeatedly disruptive on his bus. Specifically, Wint complained in writing on or about October 4, 2017, that the same male student had been improperly opening the window and throwing objects outside the bus. His report was on a standard reporting form required by the School Board. It is called Student Case Management Referral, No. 723119. This other reported incident occurred on or about September 29, 2017, several days before the altercation. Resp. Ex. 1. The Student Case Management Referral form turned in by Wint was initialed by a District employee on October 4, 2017, just days before this bus incident on October 10, 2017.9/ Susan Detmold is the district director for Transportation Services since 2013. Detmold viewed the two videos of the altercation between Respondent and the male student. Pet. Exs. 15 and 16. Detmold opined that it was inappropriate behavior for a bus driver to engage in the behavior exhibited in the videos. Detmold testified that if a student is not sitting in his assigned seat, then the school bus driver should give warnings and provide a misconduct referral to the District.10/ She also testified that in accordance with State Board Rule, only the school principals have the authority to discipline students.11/ Detmold testified that the Handbook provides drivers with procedures to follow when handling student misconduct on the bus. Pet. Ex. 6, §§ 10.06-10.07, pp. 94-96. The Handbook states that school bus drivers can stop the bus if the behavior is a serious one. Drivers will immediately contact their Dispatch Office by two-way radio and provide them with details of the situation. Drivers are to await the aid of the field operations specialist or school police. Pet. Ex. 6, § 10.06(c), p. 94. Wint disregarded this guideline in the Handbook and testified that he stopped the bus, went to the back of the bus to confront the student, but did not call Dispatch for school police until after the physical altercation with the male student had ended. The Handbook states in accordance with Florida Administrative Code Rule 6A-3.0171, State Board Rule, it is the responsibility of the bus driver [t]o maintain order and discipline, under the direction of the school principal, on the part of every passenger. Pet. Ex. 6, § 2.03(i), p. 13. The videos show, and the undersigned finds, that Wint attempted, by his actions, to maintain order and safety on the bus in the face of a very unruly, aggressive, and violent male student who was putting the safety of the bus, the bus driver, and other students at risk. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus driver is responsible for the safety of the children in his/her care. A driver should place the safety, health, and well-being of his/her passengers above everything else while they are on the bus. Drivers shall maintain a professional attitude. Drivers should be patient, firm, fair, and friendly. Pet. Ex. 6, § 2.05(e), p.15. The Handbook also states, in part, the school bus drivers will make a reasonable effort to deal with infractions of the rules of student conduct and will, to the best of their ability, maintain order and good behavior by students on their buses. Pet. Ex. 6, § 2.05(o), p. 17. The videos show, and the undersigned finds, that Wint attempted during this incident to maintain order and safety on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus drivers must not touch or put [their] hands on students. Pet. Ex. 6, § 2.06(a), p. 21. The videos show that Wint did indeed lay his hands on the student, but the undersigned finds that this was done to restrain and control a very unruly and violent student, who presented a safety risk to the operation of the bus and other students on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, school bus drivers will not physically discipline . . . any student. Pet. Ex. 6, § 10.07(d), p. 96. The videos do not show that Wint physically disciplined a student. Rather, he justifiably attempted to control a violent, angry, and uncontrollable student who placed his safety and the safety of other students at risk. Pet. Exs. 15 and 16. Ultimate Findings of Fact Under the facts outlined herein, the undersigned finds that Wint's actions and conduct during this incident conformed with sections 1006.10 and 1012.45, Florida Statutes. The undersigned finds that the School Board's rules, policies, and Handbook provisions proscribe conduct authorized or required by sections 1006.10 and 1012.45 for a bus driver dealing with an unruly and violent student in an emergency situation. To the extent they do so, they are invalid and not controlling.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County immediately reinstating Respondent, Livingston Wint, to his position as school bus driver and provide him with back pay and other accumulated benefits since his suspension. DONE AND ENTERED this 8th day of August, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. 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 8th day of August, 2018.
