The Issue Whether Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Euretha L. Davies, is a white female, who was first employed by Respondent, Laidlaw Educational Services (Laidlaw), in 1997 as a school bus driver. Respondent is an employer within the meaning of the Florida Civil Rights Act. Respondent provides pursuant to contract school bus transportation in Santa Rosa County School District. This includes all aspects of transportation: training drivers, maintaining vehicles, preparing routes and administering the system, and preparing reports to state and federal authorities. Petitioner had been an employee of the Santa Rosa County School District for nine years prior to Laidlaw contracting to provide these services in 1997. She transferred her employment to Laidlaw at that time, maintaining her senority and pay rate. On January 4, 2000, Petitioner contacted Jeffrey R. Capozzi, Driver Development and Safety Supervisor for Laidlaw at their office in Milton, Florida, about pain she was experiencing in both her wrists. She was sent to Immediate Care at West Florida Medical Center, Pensacola, Florida. There, she was seen by Kenneth Hill, M.D., an orthopedic specialist. Dr. Hill performed surgery to release the carpal tunnel in the right wrist on May 23, 2000. On August 24, 2000, a follow-up evaluation of the right had revealed that soft support of the wrist was needed, but Petitioner had reached maximum medical improvement with a one percent partial impairment. Petitioner was released to full duties. On May 2001, an annual check up was done in order to maintain Petitioner's entitlement to future workman's compensation medical treatment. This examination was performed by James St. Louis, M.D., who took over Petitioner's case when Dr. Hill moved. Dr. St. Louis ordered nerve conduction studies of the right upper extremity, which was performed on July 30, 2001, by Dr. Gerhard. Dr. Gerhard found that the transmittal of nerve impulses was normal in the right upper extremity and left median nerve. On May 2, 2002, approximately a year later and after Petitioner had had a nerve conduction study, she was sent to see Michael L. Shawbitz, M.D., a neurological specialist. Dr. Shawbitz concluded that she had tendonitis in her right wrist and recommended physical therapy. On May 15, 2002, Petitioner was given a Dexterity Test for School Bus Drivers by Lillian Barnes, which Petitioner passed. On June 5, 2002, Dr. T. F. Brown gave Petitioner a physical, which she passed. On August 6, 2002, Petitioner returned to work when school started, driving a school bus with an automatic door opener. On September 4-6, 2002, Petitioner began training to become a driver trainer. Her instructor was Zeke Zeigler, a training director for Laidlaw. From September 9 through 13, 2002, Petitioner attended classroom training presented by Stephanie Slaton, who was in charge of Driver Safety and Development at the Laidlaw office in Milton, Florida. At this time, Petitioner was driving her bus seven hours and 35 minutes each day on a regular schedule. On September 16 through 20, 2002, Petitioner completed the classroom training and was scheduled to go on the road training with the trainer who fit into her schedule. At this time, Dianne Hall, Head of Routing and Data Entry, requested that Petitioner be taken off her driving schedule to assist in preparation of the report prepared by Laidlaw for the State of Florida on bus schedules and routes for the children in the district. Petitioner was taken off her bus to assist with this report, and when it was completed, she was to continue coming into the office between the morning and afternoon bus routes to keep information in the data system updated and correct. This data entry amounted to several hours of light typing daily. On October 15, 2002, Petitioner was informed that she had an appointment to see Dr. Minoo Hollis, for Petitioner's annual checkup on her workman's compensation injury. This examination was conducted on October 17, 2002. Dr. Hollis determined that Petitioner had tenosynovitis of the right flexor, a ganglion cyst of the left wrist volar ganglion, and diffused chronic pain of the left forearm and wrist. Dr. Hollis prescribed medication and physical therapy for Petitioner and put her on light duty not driving a school bus. On October 23, 2002, Petitioner started physical therapy at Santa Rosa Medical Center three times per week for three weeks. Petitioner continued to work at the school office and to make entries into the computer system. Petitioner was assigned to the school office where she worked on various projects. She did light typing, copied documents for the school staff, and handled mail. There is a conflict in testimony regarding whether these assignments were in pursuit of assisting with the data entry or were the result of light duty because of Dr. Hollis' findings. It is found that at the point Petitioner ceased driving the bus, it was the result of the light duty assignment. These light duties continued until December 10, 2002, when Petitioner was assigned to Pace High School (PHS) where the assistant principal, Bradley Marcilliat, was delegated authority to assign her duties. Upon her assignment to PHS, Petitioner's hours per week were reduced to 30, and her typing was restricted further by her supervisors at Laidlaw. On December 12, 2002, Dr. Hollis did a follow-up examination of Petitioner after physical therapy and found that she had a two percent permanent partial impairment and prescribed the following restrictions as they relate to her bus driving duties: Can sit, stand, and walk without interruption for eight hours; Reach above shoulder level frequently Can use hands for repetitive actions such as: Simple grasping-both hands Pushing and pulling-right hand no; left hand yes Restrictions of activities involving: Unprotected heights-none Moving machinery-none Changes in temperature and humidity-none Driving automotive equipment-none Restrictions to automatic transmission-yes Fumes and gas-none On December 12, 2002, Jennifer Jack, MSN, RN, who was the case manager employed by Genex Services, Inc., for Crawford and Company, Respondent's workman's compensation insurer, reported to Stephanie Slaton that Petitioner could drive a vehicle with automatic transmission per Dr. Hollis. Ms. Jack opined, "I am not sure if driving the bus requires any repetitive pulling, but if it does not, then it looks like Ms. Davies can drive a school bus." A question existed about whether Petitioner could operate the automatic door opener on the school bus, which required the driver to pull a knob with the right hand. Ms. Jack queried Dr. Hollis, and was told Petitioner could drive a bus with an automatic door opener. On December 24, 2002, Crawford and Company informed Petitioner that she would be paid one percent as the difference between the one percent she had initially been paid, and her current permanent impairment of the body as a whole. Petitioner continued her duties at PHS until January 31, 2003. Nothing was said about her returning to her normal bus driving duties, although she had been released by her doctor to return to work with the limitations stated above. On January 31, 2003, Petitioner was advised by personnel at PHS to report to Bobbie Williams' office at Laidlaw at 10:30 that morning. When she reported to Williams, he gave her a dismissal letter, and stated that Laidlaw had been informed by the insurance company that she had reached maximum medical improvement with regard to her injury that had occurred on January 4, 2000, and that with her current restrictions she was no longer able to perform essential requirement necessary to drive a school bus. This determination was based upon the Laidlaw's determination that Petitioner could not operate the automatic door opener on the school bus. This conclusion is contrary to the evidence presented by Petitioner that she had operated the door without problem before she developed the tendonitis, and contrary to Dr. Hollis' reports and the information provided to Ms. Jack by the doctor. Although the record shows that Petitioner continued to improve as revealed in her May 2003 examination, the fact that the doctor indicated that Petitioner had a permanent impairment of two percent in December 2002 indicates that Petitioner had reached maximum medical improvement as of that date. The facts reveal that Petitioner was ready to return to work; was discharged by Respondent because of an alleged inability to open the door of the bus; that Petitioner was able to open the door of a bus equipped with an automatic door opener; and that the "inability to perform the duties of the job" asserted by Respondent were not supported by the medical restrictions communicated to Respondent's agent, who made that information known to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter its final order directing that Respondent desist from discriminatory employment practices and directing Respondent to re-employ with appropriate accommodation Petitioner, promote her to a trainer-driver, and cease any further discriminatory practices. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 4th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Euretha Davies 3404 Oaktree Lane Pace, Florida 32571 Danny K. Guerdon Laidlaw Education Services 975 Cobb Place Boulevard, Suite 218 Kennesaw, Georgia 30144 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The 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
Findings Of Fact Exception No. 1 - That portion of Findings of Fact No. 15, which finds that "(t)he Division has consistently denied Petitioners the right to purchase their service with the Pawley companies", is clearly erroneous and not substantiated by the evidence of record. Petitioners are correct in that the Division has advised them by letter (Petitioner's Exhibit No. 2, #17B) that they were able to buy their prior service with Pawley at full actuarial cost. However, that was not an issue nor the subject of this proceeding, and the finding of fact must be considered in the context of the ultimate issue in this case, that being whether or not the Petitioners were entitled to purchase their prior service at the reduced rates provided in Section 121.081(1)(g), Florida Statutes. ,with respect to that issue, the Division has consistently denied Petitioners the right to purchase their prior service. The Report of Proceedings of the Dade County Independent Review Panel (Petitioner's Exhibit No. 2, #10) contains a similar statement. That statement appears to be based on statements of Mr. Stone and Petitioner's Exhibit No. 2, #17B, above. The Report of Proceedings is hearsay and duplicates the facts and exhibits presented at the hearing. In the context of the issue in this case, the Proposed Finding of Fact No. 15 is correct, and Petitioners' exception is rejected being without factual basis in the record. Exception No. 2 - That portion of Findings of Fact No. 17, which finds that "the IRP de- termined what the "Cut-Off" date of March 27, 1962, was a "reasonable decision" to end the "period of solicitation", is irrelevant and immaterial, unless it is considered together with whether the Petitioners were given ade- cuate notice of that "reasonable decision". Petitioners claim that the above finding is irrelevant and immaterial unless considered together with the "issue" of adequate notice. The only question the Division may consider is whether or not the finding of fact was based on competent substantial evidence in the record. Since there is no evidence in record to contradict the proposed finding of fact, it is the only finding that the Hearing Officer or the Division could have reached. It is based on competent, substantial evidence in the record. The proposed finding of fact was made based on the finding of the Independent Review Panel in its Report of Proceedings. Petitioners accepted the report of the Panel and placed the Report into evidence at the hearing. They are not attempting a collateral attack on the report. Such an attack should not be a-lowed In the absence of good and sufficient reason. The question of relevancy and materiality raised by Petitioners is an appropriate objection at the time the evidence is introduced at the hearing but is inappropriate in attacking a finding of fact In a recommended order. Petitioners' objection is rejected. Exception No. 3 - That portion of Findings of Faction 20 which finds that "(i)t is under- standable that Dade County gassed a resolution simply supporting Petitioners in their claims, rather than placing Petitioners in their claims situation as any other Pawley employee who came to work for Dade County before 3/27/62, since the latter position would cost Dade County $104,696 for retroactive benefits. Petitioners claim the above finding 15 clearly erroneous and misleading, and not supported by substantial and competent evidence In the record. Petitioners discuss certain amounts necessary to purchase employee benefits and other amounts needed to purchase creditable service in the Florida Retirement System. By discussing the two amounts as if they were one amount, Petitioners clearly show their understanding of the evidence and testimony presented at the hearing. The Division advised Petitioners that it would cost Petitioner Stone $18,997.12 and Petitioner Wilson $11,657.23 to purchase their prior service should they prevail in the case at bar. In the event Dade County had considered all three petitioners to be continuously employed from the date of the strike to the respective dates of their reemployment the cost to the County to pay retroactive benefits would have been 5104.E95. Since the County and not consider Petitioners to be employees during this period, it did not pay for the normal employees fringe benefits. The payment of those benefits (albeit, retroactively) is represented by the $104,695 amount. Thus, the two amounts discussed by Petitioners represent two different funds; one to be paid by Petitioners for prior service, and one to be paid by Dade County for fringe benefits, but not including Petitioners' prior service. Contrary to Petitioners' assertion that their employment percentent and payroll status from the date of the strike to the respective dates of reemployment was not the issue in this case, the Division believes that that issue is at the very heart of this case. In order to purchase their prior service at the rates permitted by Section 121.081(1)(g) , Florida Statutes, Petitioners had to be employees of the County on March 2, 1962. If they were employees, then they are due the appropriate employee benefits for that period of time. However, since the County did not pay those benefits, then Petitioners were obviously not employees during the period at issue and, therefore, not eligible to purchase the creditable service under Section 121.06.1(1)(g), Florida Statutes. Petitioners' objection is rejected. Exception No. 4 - That portion of Findings or Fact No. 22 which finds that "/i/n addition to the obvious fact that petitioners were par- ticipating in an illegal strike and were in violation of the restraining order of the cir- cuit court, they voluntarily abandoned their right to employment by not commencing their jobs by March 27, 1962", is not supported by substantial and competent evidence. In reviewing this proceeding to determine the legality vel non of the strike, It seems obvious that the strike was illegal under one or both of two principles (see Finding of Fact No. 4). First, it was illegal under existing state law; and second, it was illegal for being in violation of the injunction issued by the circuit court. Respondent's Exhibit No. 4, pg. 271. The union in which Petitioners ware members, Amalgamated Association of Street, Electric, Railway and Motor Coach Employee of America ("Union") was involved in labor negotiations concerning the future status of the Union after the transfer. The County filed a declaratory judgment action in circuit court (Respondent's Exhibits 4 against the Union. In its final decree, the circuit court stated in part that: "2. plaintiffs are not require by law to offer employment to members of the defendant union, . . . plaintiffs are not authorized by law to enter into a collective bargaining agreement with defendants and would not be authorized to do so upon consummation of the contractual transaction evidenced by the record in this cause. plaintiffs are not authorized to recog- nized as lawful any strike directed against them and would not be authorized to do so upon consummation of the con- tractual transaction evidenced by-the record in this cause." (Respondent's Exhibit 4, numbered pages 199-200) Notwithstanding the above provisions the Union went on strike on January 29, 1962 (Respondent's Exhibit.4, numbered pg. 256); the Court, after issuing an order to show cause (id. numbered pg. 259), ordered that the Union was "enjoined and restrained from striking or continuing any strike for the purpose of covering the plaintiffs (county) or any other governmental agency to engage in collective bargaining". (Id, numbered pg. 271) However, the Union continued on strike. The case was appealed to the Third District Court of Appeal. The illegality of the strike under state law was affirmed by that court in Dade County v. Amalgamated Assn. of S.E.R. of M.C. Employees, et al, 157 So.2d 176, 183 (Fla. 3rd DC. 1963). The second issue concerning the violation of the injunction was never appealed, and the Union and its members were in continued violation of the injunction by remaining on strike. Accordingly, petitioners' objection is rejected. Exception No. 5 - That portion of Findings of Fact No. 23, which finds that "/p/etitioners claim that any returning strikers employed more than "one day" after the takeover, had a in service", is not supported by substantial and competent evidence. Petitioners claim that absence from employment of "one calendar month" constitutes a "break in continuous service". In reviewing the exhibits, we note that petitioners' Exhibit No. 2, 12, listed 33 individuals who were prior employees of the Pawley companies, went on strike and returned to work by March 27, 1962. These individuals were given retroactive benefits by Dade County and, therefore, the right to purchase the prior service under Section 121.081(1), Florida Statutes. Some of those individuals were hired by the County before the end of "one calendar month" (that is to say, before March 9, 1962) and others were hired after that date. Petitioners originally argued that an absence of one day constituted a break in service. Apparently, they have changed their position since the hearing and now argue that "one calendar month" constitutes a "break in continuous service". However, based on the facts shown and the arguments bade at the hearing the Hearing Officer's finding of fact is correct and is based on competent substantial evidence. Even if Petitioners were correct, the change from "one day" to "one calendar month" would not change the fact that they did not become employees of the County as a result of the transfer or merger of the private bus company. Petitioners' objection is rejected. EXCEPTIONS TO CONCLUSIONS OF LAW Exception No. E - Conclusion of Law No. 4. Petitioners' claim that Dade County recognized and credited them with their past service with Pawley. The evidence and testimony given at the hearing does not substantiate their claim. While the transmittal letter of Mr. Talbert (Petitioners' Exhibit No.2,#14) states that the "County Commission instructed the County Manager that the above subject employees shall be considered by Dade County to have an original employment date reflecting their employment with the Pawley companies", the actual motion by Commissioner Shack was "that Hodowud, Stone and Wilson be permitted to purchase their past services from the Satate of Florida at the reduced rate." Further, the testimony of Mr. Richard Jay Weiss, Assistant Dade County Attorney, and his exhibit (Petitioners' Exhibit 3) do not support Petitioners' position. The Exhibit states in part as follows: ". . .the County Commission has gone on record by motion to urge the State Retirement System to allow the three present claimants to receive their back time at the reduced rate". Thus, the County merely urged the Division to allow Petitioners to purchase their prior service and did not itself credit them with their past service with retroactive fringe benefits. The bearing Officer's conclusion of law is supported by competent, substantial evidence. Petitioners' objection is rejected. Exception No.7 - Conclusion of Law No. 5 Petitioners' claim that the Hearing Officers' conclusion that they did not enjoy an employee/employer relationship at the time of takeover is not supported by competent, substantial evidence. Section 11 of Ordinance 60-23 of Dade County (petitioners' Exhibit 2, item 1) states that: "whenever the County acquires existing transit systems or facilities from a publicly or pri- vately owned public utility, to the extent necessary or feasible for the economical opera- tion of such facilities, all of the employees of such acquired transit system whose duties pertain to the facilities acquired shall be employed In comparable positions in the County service and the pay status, seniority, vacation and sick leave rights shall be preserved and maintained to the fullest possible extent. All employees of the Authority shall be deemed, con- sidered or construed as County employees and shall be entitled to all the rights, privileges and benefits of County employees." Since the County cannot force any person to work or it the words "all of the employees" and "shall be employed" can logically only refer to those employees who decide to go to work for the County and conversely do not include those employees who voluntarily decide not to work for the County. In addition to the fact that the Hearing Officer found that Petitioners were participating in an illegal strike and were in violation of the restraining order of the circuit court, Petitioners voluntarily abandoned their right to employment by not returning to their jobs by March 27, 1962. Later, when they finally did commence employment with MTA, they were hired as new employees rather than previous employees who were being given reemployment. The hearing officer's conclusion of law is supported by competent, substantial evidence, and Petitioners' objection is rejected. Exception No. 8 - Conclusion of Law No. 7 Petitioners argue that the met their burden of proving that they were entitled to purchase their service under Section 121.081(1)(g), Florida Statutes; however, they offer no basis in law or fact would allow the Division to conclude the Hearing Officer was in error. In the absence of an adequate legal basis or contrary evidence in the record, the Division rejects Petitioners' objection. By motion prior to the hearing, Petitioners Wilson and Stone moved to add Metropolitan Dade County as a art Respondent. The motion was denied by the bearing Officer, and the Division hereby adopts that ruling as part of this final order. The Recommended Order is corrected at page 8, paragraph 20, line 6, wherein the month of "January" is changed to read "February". WHEREFORE based upon the foregoing findings, holdings and rulings or the Division as to Petitioners' exceptions to the Hearing Officer's Recommended Order, it is, ORDERED AND DIRECTED that each and every exception of the Petitioners' to the Recommended Order be and the same are OVERRULED and REJECTED. It is further, ORDERED AND DIRECTED that copy of said Recommended Order is attached hereto and incorporated as part of this final order. It is further, ORDERED AND DIRECTED that Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at the rates allowed in Section 121.081(1)(g), Florida Statutes, are denied. DONE AND ORDERED this 20th day of October, 1983. J. MULLIAN, III State Retirement Director Filed with the Clerk of the Division of Retirement this 21st day of October, 1983. Edna E. Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Linda M. Rigot, Hearing Officer Dan Brown, Esquire Division of Administrative Hearings John Finney, Esquire The Oakland Building Paul McMahon 2009 Apalachee Parkway Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at a reduced rate pursuant to Section 121.081(1)(g), Florida Statutes. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Edna E Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Mr. Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT NORMA WILSON, EDWARD F. HODOWUD, and, WESLEY E. STONE, Petitioner, vs. CASE NO. 81-3192 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner for the position of Training and Safety Specialist in November 1998 and December 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner first began to work for Respondent as a substitute school bus driver in November 1988, approximately half-way through the 1987-88 school year. He worked as a substitute bus driver for the remainder of that school year and approximately half of the 1988-89 school year until he was hired as a full time bus driver in January 1989. He continued to work as bus driver through the 1993-94 school year, a total of six and a half school years. In August 1994 (the start of the 1994-95 school year), Petitioner was hired as a para-professional, i.e., teacher’s assistant, in Respondent's Adjudicative Youth Program. Petitioner is still employed in that position. The program serves students who have previously been in the juvenile justice system and are now being reintegrated into the school system. Petitioner does not hold a teacher’s certificate. However, Petitioner has gained some teaching experience in his current position because he occasionally serves as a substitute teacher. Petitioner received an associates degree in criminal justice in 1995. He has taken additional classes towards a bachelor's degree, in business administration and in exceptional student education. However, he is at least a semester short of a degree in either subject. After Petitioner left his position as a school bus driver in 1994, he did not maintain his certification by taking the required eight hours of annual “in service” training and by taking an annual physical as required by Rule 6A-3.0141(9), Florida Administrative Code. In November 1998, Respondent posted notice of a vacancy for the position of Transportation and Safety Specialist. The position was coming open because Joe Dixson, the Training and Safety Specialist at that time, was retiring. The Training and Safety Specialist supervises the bus driver trainers and is responsible for coordinating the initial and continuing "in service" training of the bus drivers. The Training and Safety Specialist also serves as a liaison with law enforcement officials in the event a school bus is involved in an accident and is responsible for maintaining the bus drivers' records, including the commercial drivers license (CDL) records, which were examined by the State annually. The minimum qualifications for the position, as set forth in the November 1998 job posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from an accredited college or university with a Bachelor’s degree or equivalent Vocational/Technical training or certification. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Florida Department of Education teacher [sic] certificate in school bus driver training. Physical Requirements: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. Seven individuals submitted applications for the position, including Petitioner and Sharon Arnold. Petitioner, Ms. Arnold, and all of the other applicants were interviewed on November 20, 1998. The interviews were conducted by a five-member committee who scored each applicant on various issues. Petitioner's average score (82 out of 120) was the lowest of all of the applicants interviewed. By contrast, Ms. Arnold's average score (100.4 out of 120) was the third highest.1 Neither Petitioner nor Ms. Arnold were qualified for the position because they did not have a bachelor's degree or "equivalent Vocational/Technical training or certification." The certification was explained at hearing to be a teaching certificate issued by the Department of Education (DOE) to a plumber, for example, to teach a vocational class in plumbing. This explanation is consistent with DOE's rules. See, e.g., Rule 6A-4.076, Florida Administrative Code. None of the other applicants had these minimum qualifications either. Accordingly, Mr. Murphy recommended to the School Board that the minimum qualifications be changed to eliminate the requirement for a bachelor’s degree and to require only an “ability to obtain” the DOE certificate in bus driver training. The School Board approved Mr. Murphy’s recommendation. The purpose of the change in the minimum qualifications was to increase the pool of eligible applicants for the position. The effect of the change was to make Petitioner, Ms. Arnold, and potentially others eligible for the position. In December 1998, Respondent re-posted the notice for the Transportation and Safety Specialist position. The minimum qualifications for the position, as set forth in the December 1998 posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from high school or completion of GED. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Ability to obtain a Florida Department of Education certificate in school bus driver training. Physical Requiriments: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. The major functions and illustrative duties of the position were not changed in the December 1998 posting. The salary grade (14) and salary range ($28,800–32,490) also remained the same. The salary for the Transportation and Safety Specialist position was based upon 12 months of work. Petitioner's salary in December 1998 was $17,518, but that was based upon a 194-day (i.e., school year) contract period. Seven individuals, including Petitioner and Ms. Arnold, applied for the position as re-advertised. Of the original applicants, Ms. Arnold and Petitioner were the only individuals who reapplied. Petitioner, Ms. Arnold, and the other applicants were interviewed on December 9, 1998. The applicants were interviewed by a four-member committee who scored each applicant in the same manner as before. Ms. Arnold received the highest average score from the interviewers, 107.5 out of 120. By contrast, Petitioner's average score was only 82.5 out of 120.2 Based upon the interviews, the committee recommended to Mr. Murphy that Ms. Arnold be hired for the position. Mr. Murphy accepted the committee’s recommendation and Ms. Arnold was hired as the Transportation and Safety Specialist starting in January 1999. She was hired at the minimum salary, and she is currently employed in that position. Ms. Arnold was first employed by Respondent in March 1987, as a substitute bus driver. She was hired as a full-time bus driver in May 1987, in advance of the 1987-88 school year. She continued to work as a bus driver until she was hired as Transportation and Safety Specialist, a total of 11 school years. In addition to her duties as a bus driver, Ms. Arnold served as a bus driver trainer since 1993. In that capacity, she provided on-road training to newly-hired and prospective bus drivers by observing their performance and helping them learn their routes. Ms. Arnold volunteered for these additional duties, although she was paid her hourly wage for conducting the training. She provided this training during the week between her morning and afternoon bus driving shifts, and sometimes on the weekends. Petitioner never served as a bus driver trainer. Ms. Arnold is certified by the State as a CDL trainer and examiner for Class A, B, and, C vehicles. As a result, she is authorized to teach and test persons applying for a CDL license to drive a school bus, tractor trailer, and other large vehicles. Ms. Arnold assisted the Department of Highway Safety and Motor Vehicles staff as a CDL examiner during the summers and received positive feedback on her work. Petitioner is not a certified CDL trainer or examiner. Ms. Arnold is also certified by DOE as a school bus driver trainer. She holds a Level 1 certification which allows her to administer classroom training, as well as a Level 2 certification which allows her to administer on-road training. Petitioner does not hold the DOE certifications, although he has the ability to obtain them. Ms. Arnold received the DOE certifications in October 1998 after a week-long seminar paid for by Respondent. Ms. Arnold was recommended for the seminar by Mr. Dixson and her area supervisor. Mr. Dixson recommended her because of the dedication and hard work that she exhibited when working as a bus driver trainer. Other drivers were recommended for the seminar as well; however, Petitioner was not one of those recommended. In addition to her formal duties as a school bus driver, Ms. Arnold volunteered at Frost Proof Elementary School prior to the start of each school year to help answer parents' questions about their child's school bus route. There is no evidence to support Petitioner's contention that the minorities are systematically overlooked for professional positions in Respondent's transportation department. To the contrary, the evidence shows that since 1993 when Mr. Murphy was hired as the administrator responsible for the transportation department, minority employment in advanced positions has increased significantly, from zero to six (out of 18) bus driver trainers and from zero to six (out of 27) professional staff.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner’s charge of discrimination. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2002.
The Issue Whether respondent discriminated against petitioner on account of his gender in failing to hire or rehire him as a school bus driver?
Findings Of Fact Respondent Escambia County School Board transports some 32,000 students, three years old and up, to and from school every day. Three male route supervisors answer to respondent's male director of transportation, each overseeing approximately a third of the school bus routes and regular drivers, 90 percent or more of whom are women. In the event a regular driver is unavailable, a route supervisor arranges for a substitute driver, most of whom are also women, from the approved list. Service as a substitute school bus driver is a prerequisite to employment as a regular school bus driver. When petitioner was hired, he was told he would not be considered for a regular position until he had driven two years as a substitute. At the time of the hearing, respondent's policy precluded employment as a regular school bus driver before three years' work as a substitute. Substitute drivers' seniority and the quality of their service dictate who gets the regular positions. Petitioner Michael Dwayne Sapp drove a school bus in Atlanta before he started as a substitute driver for respondent in 1984. In Atlanta, he had received both a certificate for training as a school bus driver and, in 1981, a certificate in recognition of his service as a school bus driver. He still had to attend classes for two days and accompany a regular Escambia County school bus driver for a third, before being deemed eligible to work as a substitute bus driver for respondent. When he substituted several days in succession, petitioner was allowed to drive a school bus home, but he was informed of respondent's policy against any other personal use of the bus. He nevertheless "took it up to Cottage Hill." Hohaus Deposition, p. 13. One of the witnesses petitioner called at hearing testified that she had seen him pushing a grocery cart full of groceries across a parking lot in front of the Delchamps store on Mobile Highway toward a parked school bus. Whether petitioner's superiors learned of this at the time was not shown. After petitioner drove the school bus to the northern part of the County to spend the night because the power at his house was off, Mr. Hohaus, a route supervisor, told petitioner he would not be using his services any more. But petitioner complained, ultimately to Superintendent Holloway, who decided he should be given another chance. A route supervisor received "numerous complaints" of petitioner's speeding and "running red lights or stop signs." Id. at 14. Petitioner denied the accuracy of these complaints both at the time and at hearing. He has never received a traffic ticket while driving a school bus. On October 10, 1988, Mr. Sapp telephoned Mr. Hohaus at about half past six, after the time he should have begun picking children up to take to school. He said he had been trying to start the bus without success. Mr. Hohaus arranged for another substitute driver to take the route and dispatched Gary Locke, a mechanic, to petitioner's house. But, when the mechanic arrived at the Sapp residence, the school bus was not there, and the second substitute found no children at the first stop to which Mr. Hohaus had sent her. Mr. Hohaus then raised petitioner on a two-way radio and learned he was making the run after all. He asked Mr. Sapp to come see him once the children had been delivered to school. Mr. Sapp did not come in person but he did telephone. Eventually, he admitted that he had overslept, and had experienced no mechanical difficulty with the school bus that morning. (At hearing, petitioner attributed his oversleeping to medicine he had taken.) Mr. Hohaus told him for the second time that he would not need his services again. When petitioner appeared at the administration building to complain to a superior, he called Mr. Hohaus a son of a bitch, and Mr. Hohaus threatened to stuff him in a trash can. In August of 1989, Mr. Sapp applied to Robert Sites, who had just assumed the directorship of transportation, for a school bus driver's job. No regular positions were open at that time, but Mr. Sites inquired of all three route supervisors as to whether they would use his services as a substitute. Because each said no, he did not rehire petitioner as a substitute school bus driver.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 19th day of June, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of June, 1992. COPIES FURNISHED: Pete Payton, Superintendent Escambia County School Board P.O. Box 1470 Pensacola, FL 32597 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Michael Sapp 5342 Deerwood Road Pensacola, FL 32526 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 W. Cervantes Street Pensacola, FL 32501
The Issue May Respondent's annual contract as non-instructional personnel (school bus driver) for the 1991-1992 school year be lawfully terminated by Petitioner School Board? Does Respondent retain any rights to renewal of his annual employment contract under the circumstances of this case?
Findings Of Fact Respondent, James Gravelding, was hired by Petitioner School Board in February 1989 as a school bus driver. With the exception of tenured teachers, all School Board employees, including those employees covered under the AFSCME collective bargaining agreement, are employed on an annual contract basis for a period not exceeding one year. At all times material, Respondent was an annual contract employee covered under the AFSCME agreement. Neither Respondent's employment contract nor the collective bargaining agreement provide any recourse for an employee who is not reappointed for a succeeding school year. The School Board has absolute discretion to reappoint or not reappoint any annual contract employee by a new annual contract at the end of each school year/contract term. Respondent was first employed on annual contract from February 1989 to June 1989. That annual contract and succeeding annual contracts covered the 1989-1990 school year, the 1990-1991 school year, and the 1991-1992 school year. During the course of his 1991-1992 annual contract, on November 7, 1991, Respondent was recommended for termination. The reason for the termination recommendation was Respondent's alleged violation of School Board policy with regard to the reporting of accidents. The charging document specifically stated: This action was necessitated by your failure to follow School Board Transportation Procedures in general, and Procedure (504.1)(6.B.) (Reporting of Accidents) in particular. Petitioner School Board's policy at (504.1) (6.B.) (Reporting of Accidents) is published in the "School Bus Drivers and Aides Handbook" and provides: 6.B. REPORTING OF ACCIDENTS: Drivers of school board vehicles will be required to report all accidents, violations, citations occurring in school board vehicles, suspensions, and/or revocations of driver license. Failure to report or inaccurate reporting shall be grounds for termination of employment. Accidents in a board owned vehicle must be reported at the time of the accident to the transportation department and in accordance with Florida Statute 316.065: "The driver of a vehicle involved in an accident resulting in injury to or death of any persons or property damage, shall immediately by the quickest means of communication, give notice of the accident to the local police department, if such accident occurs within a municipality; otherwise, to the office of the county sheriff of the nearest office or station of the Florida Highway Patrol. Respondent had received a copy of and was aware of the foregoing policy. On October 21, 1991, Respondent was driving his usual morning route in a substitute school bus, starting from the New Smyrna Beach school bus terminal. He left the terminal at 6:15 a.m. to pick up and deliver approximately 51 high school students. At approximately 6:45 a.m. he had all of the high school students loaded on the bus. At that time, he made a left- hand turn at the intersection of Indian River Boulevard and Route One, hitting a child who was chasing the bus by running in the inside turn lane. Either the child's foot or leg was injured at that time. It was not yet daylight, and Respondent did not see the child before or after the accident. Respondent felt no "bump" and was unaware that the accident had occurred. However, at that time, he was aware of a number of students standing in the back of the bus, looking out the window. These students only sat down after about ten minutes. No one immediately reported the accident to Respondent. At approximately 7:00 a.m., (fifteen minutes after the accident and five minutes after the children sat down) Respondent completed delivery of the high school students to New Smyrna Beach High School. As they exited the bus, one student reported to Respondent that he thought Respondent had run over a child's foot at the Indian River Boulevard and Route One intersection. Although Respondent's testimony wobbled on whether or not other students concurred with the spokesman who made the oral accident report to Respondent, the portion of Respondent's testimony to the effect that several students concurred in the oral report and his prior admission that several students concurred in the oral report are accepted here. Respondent testified that he had assumed that the students were kidding about the accident and told them so. He made this assumption despite the fact that he had never been lied to by the students involved and despite the fact that Respondent regarded the spokesman as a pretty good kid. Respondent further admitted there were no indicators of dishonesty in the students' report. He simply felt the accident report to him by a few students when he stopped at New Smyrna Beach High School approximately fifteen minutes after the accident occurred could not be true because if it had been true, the majority of the other students should have said something to him at the precise time of the accident. After the high school students exited his bus, Respondent drove behind the high school and tried to call his supervisor, Barbara Ivey, who was based in Daytona. He overheard someone else calling her and discovered she was out that day on leave. Standard procedure was for a substitute supervisor to be on duty. Respondent made no further attempts to report the alleged accident to that supervisor or to anyone else until much later, despite the fact that at all times material he had a working radio in his bus and knew that a dispatcher was on duty to take all radioed calls from drivers. Respondent also did not go into the high school to make a report to the high school principal or to contact School Board administrators by telephone. Respondent merely went on to complete his next two bus runs. Respondent completed his pickup and delivery of elementary students at approximately 7:50 a.m. He did not go into the elementary school to make a report to the elementary school principal or contact School Board administrators by telephone. At approximately 8:00 a.m., Respondent began his pickup of middle school children. Either while still on his middle school run or after completing his middle school run and while on his way back to the New Smyrna Beach school bus terminal, a dispatcher contacted Respondent by radio and asked him to telephone Mr. Crawford, Operations Administrator for the School Board's Transportation Department. No reason for this request was given by the dispatcher to Respondent, but in fact, Mr. Crawford had heard about the alleged accident from other sources and was trying to determine which bus was involved. Respondent did not report the alleged accident to the dispatcher when he received this notice to call Mr. Crawford. Respondent never went into the middle school to make an accident report to the principal or to contact School Board administrators by telephone. After he returned to the New Smyrna Beach school bus terminal, where there were no supervisors, Respondent consulted some older bus drivers and relied on their suggestion to make out an accident report form. When he could not find an accident report form, he made a very cursory explanation of events on a "suggested complaint form." Respondent's explanation on the "suggested complaint form" read only: student told me while unloading at High School that a kid was chasing Bus thru (sic) intersection of Indian River Blvd. and Route 1. I had no knowledge of this Respondent then placed the suggested complaint form in the interoffice mail at the New Smyrna Beach school bus terminal so that the form was received by his supervisor, Mrs. Ivey, in her Daytona office the next morning when she reported back to work. It is conceivable that the form arrived in her office the afternoon of the accident, but there is no clear proof to that effect. Respondent conceded that if one were certain that an accident had actually occurred, this method would not be the quickest way to report it. Only at that point, after putting the "suggested complaint form" in the interoffice mail, at approximately 9:00 a.m., did Respondent telephone Mr. Crawford from the New Smyrna Beach school bus terminal. The entire content of this conversation is in dispute, but it is abundantly clear that Respondent never volunteered any information to Mr. Crawford to the effect that he may have accidently hit a student with his bus, injuring the student. Respondent then went home. About 10:00 a.m., the dispatcher summoned Respondent from his home to the terminal where he met with various School Board administrators, including Mr. Crawford, and an officer of the Edgewater Police Department, who informed Respondent he had been involved in a hit and run. Only after this conversation did School Board administrators have a chance to interview the Respondent or go to the hospital to interview the injured child. The purpose of the School Board's accident report policy is to ensure the safety of school children and to permit immediate response and investigation of accidents by the School Board and by law enforcement for purposes of criminal/traffic prosecutions and defense of civil liability/damages actions. The radio dispatcher system was instituted during Respondent's period of employment so there would be communication with the buses all of the time that school buses were in service. Administrators are on call 24 hours a day in the event a serious problem occurs and can be "beeped" by the bus dispatcher. Respondent was aware at all times that his bus radio was available for just the type of emergency situation as occurred on October 21, 1991. During the preceding school year (the 1990-1991 school year), while Respondent was driving a school bus, one of his child passengers was injured and another child passenger reported the injury to Respondent. On that occasion, Respondent immediately pulled the bus over and reported the accident by radio to the dispatcher. When the School Board investigated the October 21, 1991 accident, no points were assessed against Respondent either by a point system adopted under School Board policy or under a point system adopted by the State of Florida. Respondent also was not prosecuted by the authorities for any traffic infractions or for injury to the child. The record is barren of any information as to whether or not any civil liability or damages were assessed against Respondent or the School Board as a result of this accident. Subsequent to the October 21, 1991 accident, Respondent was not processed through a Safety Committee review of a graduated point system established under (505)I, (505)II, (505)IV, (505)V, (505)VI and (504.1) (6.D. and F.) of the School Board "Support Services Policies." However, it was not shown that those policies superseded policy (504.1)(6.B.) (Reporting of Accidents) which specifically requires termination of employees for failures and inadequacies of accident reporting. There is no School Board policy that mandates graduated disciplinary actions in place of mandatory termination under (504.1) (6.B.) (Reporting of Accidents). The AFSCME collective bargaining agreement does not require graduated discipline before dismissal. School Board Policy (505)II utilizes language identical to the termination policy of (504.1) (6.B.). Moreover, the job of school bus driver is one in which driving constitutes an essential part of the job duties, and Policy (505)VI B. provides, in pertinent part: When an employee of the school district is terminated as a driver, the committee shall determine whether driving constitutes an essential part of the employee's job duties. If driving is an essential part of the job duties 'termination as a driver' shall result in termination of the employee's employment with the school district. . . Prior to the 1991-1992 contract period, Respondent had not had an exemplary employment history with the School Board, even though all concerned admitted he was a technically proficient school bus driver. He almost had not been recommended for re-employment for the 1991-1992 school year due to marginal performance. The problems experienced by the administration in connection with Respondent involved a history of actual violations and of numerous unproven complaints against him for unprofessional behavior, violation of smoking, drinking, and dress policies, and a prior minor preventable accident. Respondent had conferenced repeatedly with administrators and had always promised improved behavior and policy compliance. Prior to the date of accident herein, he had cleared up all his prior deficiency points through in-service training, recertification, and riding evaluations by safety officers. However, previously, on March 28, 1991, as a condition of rehiring him on annual contract for the 1991-1992 school year, the School Board had required him to do certain things and had specifically warned him in writing that any further proven policy violations of any type would result in termination. On November 7, 1991, after investigation of the October 21, 1991 incident was completed, Respondent was terminated from his 1991-1992 annual contract. See Finding of Fact 4, supra. Respondent was not offered an annual contract for the 1992-1993 school year.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board of Volusia County enter a Final Order ratifying the termination of Respondent. DONE and RECOMMENDED this 30th day of December, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-8269 The following constitute specific rulings, pursuant to Section 120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1-4. Except as unnecessary, subordinate, or cumulative, the proposals are covered in the preliminary material of the Recommended Order. 5-7. Accepted, except where unnecessary, subordinate, or cumulative. 8. Rejected as unnecessary. 9-10. Accepted, except where unnecessary, subordinate, or cumulative. 11. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation. 12-14. Accepted, except where unnecessary, subordinate, or cumulative. Inaccuracies corrected. Accepted, except where unnecessary, subordinate, or cumulative. Mere argumentation is also rejected. Accepted, except where unnecessary, subordinate, or cumulative. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation. Rejected as partially unproven and partially unnecessary, subordinate, or cumulative. Mere argumentation is also rejected. Accepted, except where unnecessary, subordinate, or cumulative. Respondent's PFOF Respondent did not submit any PFOF. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Thomas J. Pilacek, Esquire Maitland Green, Suite 110 601 South Lake Destiny Road Maitland, Florida 32751 Dr Joan Kowal, Superintendent Volusia County School Board P. O. Box 2118 Deland, Florida 32720
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The issue is whether Petitioner, the Manatee County School Board (the "School Board"), may terminate Respondent's employment as a non-instructional employee for "just cause" as defined in Section 6.11 of the School Board's Policies and Procedures Manual, based upon the conduct alleged in the Amended Administrative Complaint filed at the Division of Administrative Hearings on June 9, 2009.
Findings Of Fact Respondent Stephanie Waiters was hired by the School Board as a bus driver on August 6, 1996. In 2005, she was promoted to the position of area coordinator. The five "area coordinators" are first-line supervisors responsible for overseeing the daily operations of the buses within their assigned geographical districts. In December 2008, Terry Palmer was promoted from assistant director to the position of director of transportation. Upon his promotion, he was informed by the School Board that, due to budget constraints, his former position would not be filled, nor would the open position of operations coordinator. On January 23, 2009, Mr. Palmer issued a memorandum to all transportation employees regarding the additional duties that transportation department employees would be required to undertake in response to the budget cuts. Mr. Palmer's memorandum stated that, because he would not have administrative assistance, the area coordinators would report directly to him and would assume certain "additional responsibilities": The expanded role of the Area Coordinators will include: 1. employee evaluations; 2. parent conferences; 3. coaching and assisting employees on their buses; 4. observing bus operations at stops, schools etc. when needed; 5. following through on complaints from schools, parents and/or citizens and coordinating action with others inside and outside the department; 6. counseling employees on performance issues and documenting employee discipline; 7. ensuring all employees assigned to them have all of the training and coaching they need to succeed; 8. initiating, in conjunction with the director, involvement of the Office of Professional Standards on extreme issues of poor performance and/or misconduct. Ms. Waiters was the area coordinator for District 5, which includes Palmetto High School. Bus 537 was assigned to District 5 and ran routes to, among other schools, Palmetto High School. The regular operator of Bus 537 during the 2008-2009 school year was Carol Hindman. Ms. Waiters testified that there had been a lengthy history of student disciplinary problems on Bus 537. On Thursday, February 5, 2009, Ms. Waiters phoned Jose Rodriguez, a substitute bus driver employed by the School Board, and informed him that he would be driving Bus 537 on Monday, February 9, 2009.1 On the morning of Friday, February 6, 2009, Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to familiarize himself with the route. Mr. Rodriguez testified that there were no problems on the bus until it reached the stop at 29th Street and 9th Avenue Drive East ("29th and 9th"). The students at this stop were rowdy and disregarded his instructions to put away their cell phones and iPods and to carry their backpacks in front of their bodies. From that stop onward, it became a "party bus," according to Mr. Rodriguez. The students informed Mr. Rodriguez that they run the bus, and that the "racist cracker bitch" Ms. Hindman just drives it. The students claimed to have hurt Ms. Hindman, and threatened to hurt Mr. Rodriguez if he attempted to control their behavior. One student began calling Mr. Rodriguez "Chico." Mr. Rodriguez testified that the situation was even worse on the afternoon route, with noise, screaming, radios playing and general horseplay making the situation dangerous. That night, Mr. Rodriguez phoned Ms. Waiters to tell her the Palmetto High School students on Bus 537 were "off the chain" and he was not sure he could handle the situation. She advised him to drive the bus on Monday and see how it went when he was alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on the students who made trouble and she would back him up in any way necessary. Mr. Palmer explained the disciplinary authority of bus drivers and the related referral process as follows: From the standpoint of what they can do, is obviously they should try to work with the student on the bus, they can counsel them, they can move their seat, they can work with them on the bus. If that's unsuccessful, they then write a referral which is given to the school for processing, describing what the behavior has been that is disruptive or that is [in] violation of the safety rules, and then that's given to the school to take care of... Typically, [upon receipt of the bus driver referral,] the principal will assign the assistant principal or have parent liaisons that will meet with the individual students regarding behavior, talk about what that behavior is, why it's dangerous, and so forth, counsel them the first time, and then go through a series of progressive disciplinary steps which can lead to suspension from the bus and ultimately expulsion if it's not corrected. The referral form indicates the disciplinary action taken by the principal or his designee. (Section 1006.10(2), Florida Statutes, prohibits the principal from delegating to bus drivers the authority to suspend students from riding the bus.) If the student is to be suspended from riding the bus, the student's parent must first be notified. The school bus operator is also notified of the discipline resulting from the referral. Before a suspended student may ride the bus again, he is required to present the pink carbon copy of the referral form to the driver.2 Mr. Rodriguez drove Bus 537 on the morning of Monday, February 9, 2009. He testified that it was "the same routine" on Monday. Mr. Rodriguez said that he did not even attempt to control the students because his efforts to do so the previous Friday had been such a failure. Mr. Rodriguez stated that he was concerned for his and the students' safety at the three railroad crossings the bus had to traverse on the way to Palmetto High School. The proper procedure is to put on the signal flashers when the bus comes within 50 feet of the railroad crossing. Then, when the bus is within 25 feet of the crossing, the driver turns off everything but the motor to achieve as complete a silence as possible, because he must be able not only to see but to hear whether a train is approaching the crossing. Mr. Rodriguez testified that he tried to silence the students at the railroad crossings, telling them it was for their own safety. They laughed and carried on with their screaming and horseplay. After finishing the morning route, Mr. Rodriguez reported to Ms. Waiters, who told him to write referrals on the students for their behavior at the railroad crossings and the general mayhem described by Mr. Rodriguez. Ms. Waiters told Mr. Rodriguez to take a School Board vehicle and drive to Palmetto High School to turn in the referrals. Mr. Rodriguez testified that he went to Palmetto High School and gave the referrals to the assistant principal, Carl Auckerman. Mr. Rodriguez testified that Mr. Auckerman told him he would take care of the matter. Mr. Rodriguez testified that the situation was at least as bad on the Monday afternoon route of Bus 537. Ms. Waiters phoned him at home that evening, and advised him to write more referrals on the misbehaving students. She asked him if he needed someone else on the bus, but Mr. Rodriguez said he could handle the situation. Mr. Rodriguez testified that he wrote referrals on Monday evening. He drove the bus on Tuesday morning, experienced the "party bus" situation again, and then wrote more referrals. He testified that he and Ms. Waiters drove to Palmetto High School with the new referrals. They met with Mr. Auckerman and the SRO, Officer Douglas Marston of the Palmetto Police Department. Mr. Rodriguez testified that Mr. Auckerman told them he was going to issue bus suspensions of eight-to-ten days to all of the students who received referrals. Mr. Rodriguez and Ms. Waiters were satisfied with this outcome, and left the office. Ms. Waiters generally supported Mr. Rodriguez' version of the events occurring on Monday, February 9 and Tuesday, February 10. However, Mr. Auckerman, the assistant principal, testified that he did not know Mr. Rodriguez, did not meet with him on February 9 or 10, and received no referrals related to Bus 537 prior to February 11, 2009. Officer Marston testified that he knew nothing of the situation on Bus 537 prior to the morning of Wednesday, February 11. The testimony of Mr. Auckerman and Officer Marston was consistent and credible. The testimony of Mr. Rodriguez and Ms. Waiters was inconsistent. Their chronology of events constantly shifted and was unsupported by the documentary evidence, which was consistent with the testimony of Mr. Auckerman and Officer Marston.3 Mr. Rodriguez testified that he alone met with Mr. Auckerman on the morning of Monday, February 9. In a deposition, Ms. Waiters testified that she accompanied Mr. Rodriguez to Palmetto High School on February 9 and was in Mr. Auckerman's office with Mr. Rodriguez. At the hearing, Ms. Waiters testified that her only meeting with Mr. Auckerman on February 9 occurred that afternoon at the Palmetto High School bus loop. During cross-examination, when she was confronted with her contradictory deposition testimony, Ms. Waiters testified: With all the dates, the 9th, the 10th and the 11th, it's very vague, everything. I probably did, probably didn't, but I did go in to see Mr. Auckerman. I don't know if he came to the bus loop on Monday or whether I went, but I did go there two consecutive days with Mr. Rodriguez. The above quote is typical of Ms. Waiters' testimony at the hearing. She would make a definite, affirmative statement as to where and when an event occurred, but when pressed by opposing counsel or contradicted by her own prior statements, she would retreat into vagueness and uncertainty. During her interview with Debra Horne, the OPS investigator, Ms. Waiters stated that referrals were submitted to Mr. Auckerman on Tuesday, February 10 and Wednesday, February 11, then changed her story to state that the referrals were not submitted until Wednesday, February 11 and Thursday, February 12. Both versions contradict her testimony at the hearing that she oversaw Mr. Rodriguez' writing of referrals on Monday, February 9 and Tuesday, February 10. Ms. Waiters attributed her confusion to Ms. Horne's interviewing style.4 Mr. Rodriguez was similarly subject to confusion as to the timing of events. As noted above, he testified that he and Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and that at this meeting Mr. Auckerman announced that the misbehaving students would be suspended for eight to ten days. During cross-examination, Mr. Rodriguez was presented with the referrals that he claimed to have written on February 10, and was forced to concede that these referrals described events that actually occurred on Wednesday, February 11. He unconvincingly continued to claim that the meeting occurred on February 10, and that there existed other referrals that were actually written on February 9 and 10 that were not part of the documentary evidence. Mr. Rodriguez claimed to have his own copies of these referrals, but was unable to produce them at the hearing. In her interview with Ms. Horne, Ms. Waiters claimed that on the morning of Wednesday, February 11, she was enforcing bus suspensions issued by Mr. Auckerman at their meeting on the previous day. At the hearing, she conceded that she could not remember whether the meeting with Mr. Auckerman occurred on February 10 or 11, and further conceded that no student had been suspended from Bus 537 prior to Wednesday, February 11, 2009. Mr. Rodriguez testified that Bus 537 was worse than ever on the afternoon of Tuesday, February 10, because the students knew they had received referrals and had nothing to lose. He was afraid for his personal safety when crossing railroad tracks. On the phone that evening, Ms. Waiters told Mr. Rodriguez that she would be riding the bus on Wednesday morning. As to the events leading up to Wednesday morning, Ms. Waiters testified that Mr. Rodriguez had difficulty writing his initial referrals on Monday because, as a substitute driver, he did not know the names of the students. Ms. Waiters lives in the area served by Bus 537, and drove many of the same students on her bus when they were in elementary school. She suggested that they "pull the tape" from Monday morning so that she could name the misbehaving students for Mr. Rodriguez. The School Board maintains recording video cameras on its school buses. However, the video camera on Bus 537 was broken and in need of repair. A written repair request submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February 10, 2009, stated, "Camera & tape don't work; tape pops out & stays out; no red light indicating camera is on." Nonetheless, Mr. Rodriguez testified that he and Ms. Waiters watched a video recording from Bus 537 on Monday, February 9. Ms. Waiters testified that there was no video tape from February 9 because the tape was "popped out," but that they were able to watch video after the morning route on February 10. She stated that "the tape was working fine, but the audio was totally messed up." No video tape documenting the events of the morning of February 10 on Bus 537 was presented at the hearing. The video camera was repaired and fully functional on the morning of Wednesday, February 11, 2009, and a video recording of the events of that morning on Bus 537 was entered into evidence.5 The undersigned viewed the videotape at the final hearing, and viewed a DVD version of the videotape twice more during the preparation of this Recommended Order. Ms. Hindman, the regular driver, drove Bus 537 on the morning of February 11. Mr. Rodriguez was already on the bus as the video commenced at 6:44 a.m. Mr. Rodriguez thought he was to drive the bus on Wednesday morning, but for some reason Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride the bus because Ms. Hindman had no control over the situation, and he would be free to watch the situation and continue writing referrals on the troublesome students. Ms. Waiters testified that she decided to ride Bus 537 on Wednesday morning because Mr. Palmer had ordered her to "take care" of the situation, which she took as permission to do whatever was needed to bring order to the bus.6 At 6:47 a.m., Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd Avenue, one stop before 29th and 9th. As the bus proceeded, Mr. Rodriguez consulted Ms. Waiters as he attempted to identify some of the troublemaking students. He held a sheaf of papers. Ms. Waiters admonished him not to discuss what they were about to do in front of the students7 already on the bus, and stated her intent to move those students to the back of the bus before the students boarded at 29th and 9th. The bus was scheduled to reach the stop at 29th and 9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters directed the students already on the bus to move to the rear seats. After the bus had been stopped for approximately ten seconds, a student at the 29th and 9th stop, whom Ms. Waiters identified as J.P., knocked on the door. Ms. Waiters moved to the door and out of camera range, but could be heard stating authoritatively, "Get your hands off the window." At the hearing, Ms. Waiters testified that she suspected J.P. was carrying a weapon and that she feared for her safety and that of the students on the bus, but believed that the safest course was to allow him to board the bus rather than confront him about the suspected weapon. This testimony cannot be credited, as Ms. Waiters made no mention of such a suspicion to the Sheriff's deputies who were later dispatched to the bus, to Mr. Auckerman or SRO Marston when they arrived at the bus, or to Ms. Horne during the later investigation. Ms. Waiters' testimony that she did not reveal her suspicions due to fear of reprisals from J.P. or his confederates, based in part on an apparently unrelated and unsolved break-in that occurred at her home five years earlier, is not credited. After admonishing J.P., Ms. Waiters stated, "Everybody that rode yesterday, let's get on the bus, come on." Then, only seconds later, she stated, "Everybody who rode this bus yesterday still thinks they are going to get on the bus. They're not riding anymore." She stood just inside the door and began allowing a few students on the bus one at a time, directing them to their assigned seats. Ms. Waiters could be heard telling one unseen student, "Off the bus, off the bus," while his voice could be heard saying, "But I ride this bus." She began reading out names from a list provided by Mr. Rodriguez. The named students, apparently those who did not make trouble for Mr. Rodriguez the previous day, were allowed to board the bus.8 After these students were boarded and seated, Ms. Waiters directed them to move to the back of the bus. Then, Ms. Waiters began letting the rest of the students from 29th and 9th onto the bus. As they boarded, she said, "Enjoy this ride. This is y'alls last day riding the bus ever." The videotape shows that these students boarded the bus in orderly fashion and were seated without incident. As the students were boarding, Ms. Waiters stated that the bus would not be stopping at 29th and 9th any more. "You're within walking distance, you'll walk," she said to an unseen student. By 6:59 a.m., all of the students had boarded the bus at the 29th and 9th stop. The bus remained stopped. The students talked loudly among themselves, but were otherwise well behaved. Ms. Waiters phoned her dispatcher and told her to request that the Manatee County Sheriff's Office send deputies to the bus stop at 29th and 9th. At approximately 7:02 a.m., a male student attempted to disembark, telling Ms. Waiters that he had phoned his mother and she was coming to pick him up. Ms. Waiters told him to be seated because they had to wait for the Sheriff's deputies to arrive. The student complained, "What Sheriff? Nobody didn't do nothing," but obeyed Ms. Waiters' instruction. While they waited, the students in the front of the bus could be heard laughing and joking about what various parents or step-parents might do when they came to the bus, such as breaking the windows or tearing off the door.9 At approximately 7:06 a.m., Ms. Waiters spoke to some unseen parents through the closed door of the bus, saying, "Wait a minute. We'll release them in a second." A few seconds later, she addressed the students: "We'll either be releasing you to your parents or the Sheriff. So if you have a cell phone, you want to call your parents. You can go ahead and call them." At this point, no Sheriff's deputy had arrived at the scene. The evidence established that the first deputy to arrive, Deputy Kenneth Warner, was not even dispatched until 7:07 a.m. This fact is significant because during her interview, Ms. Waiters told Ms. Horne that law enforcement had directed her to tell the student to call their parents. At the hearing, Ms. Waiters testified that a Sheriff's deputy told her to have the kids call their parents, and that she was just repeating what the deputy told her. Ms. Waiters' testimony on this point is clearly not true. At approximately 7:07 a.m., Ms. Waiters stated to the students, "We're waiting to release you to the Sheriff or your parents." At this point, the students were still in high spirits, talking loudly to each other but not noticeably upset. At approximately 7:08 a.m., a call was made to the Sheriff's Office by a parent. The caller informed the dispatcher that her son had used his cell phone to call her from Bus 537. Her son told her that the students were locked on the bus and the driver refused to speak to parents who had arrived at the bus stop in response to their children's calls. Deputy Warner arrived at 29th and 9th at 7:10 a.m. His view of the situation, which is entirely supported by the videotape, was as follows: [The students] were all sitting in their seats, no one was up, but they were vocal, they were expressing their concerns about comments and stuff like that Ms. Waiters was stating... She was kind of instigating an issue. She was walking up and down, and making comments. Like if they made a comment to her, she would reply with a comment which would fire them up, and then they would all have comments back and forth... [The four or five parents who arrived] just didn't know what was going on, as me, I didn't know what was going on, either. They were wondering why they were getting calls from their children. So, I don't know. They were upset. Deputy Warner credibly denied that he gave any directives to Ms. Waiters, or indeed had much idea why he had been summoned to the scene: "It was my impression when I arrived that she just needed me there as support, and that she was handling the situation." The videotape shows Ms. Waiters meeting Deputy Warner at the door of the bus, and stating that this was a situation similar to the "one we had a couple of weeks ago that I took care of."10 She told the deputy that certain students on the bus must either be taken to the juvenile detention center ("JDC") or be released to their parents, because there have been "a lot of problems" on the bus. Ms. Waiters offered Deputy Warner no further details as to why the students could not ride the bus to school. Because he was confused by the situation, Deputy Warner radioed dispatch and requested that SRO Marston respond to his call. At 7:12 a.m., Ms. Waiters announced to the students, "You need to call your parents because you will not be riding the bus. The ones that have parents at work, you'll need to get your aunts or something, because you will not ride the bus." Ms. Waiters began releasing students whose parents were waiting outside the bus. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told the remaining students that they needed to call their parents for a ride to school. Deputy Daniel Whidden was dispatched by the Sheriff's Office and arrived at the scene after Deputy Warner. Deputy Whidden, who was also a football coach at Palmetto High School and knew several students on the bus, testified that he gave Ms. Waiters no direction on how to handle the situation. Ms. Waiters told him that there had been problems on the bus the day before, and she was calling parents and having them pick up their children. At 7:23 a.m., Deputy Whidden boarded the bus and explained to the students that they were not allowed to disembark because the School Board was responsible for their safety. He told the students that SRO Marston was on his way to the bus stop to assist in transporting to school those students who were not allowed to ride the bus. Deputy Whidden testified that when he boarded the bus, the students were all in their seats. Some were protesting that they had done nothing wrong, but no one needed to be calmed down. This testimony is consistent with the evidence of the videotape. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the students in the rear would be transported to school on the bus. As to the others, she stated, "I told them yesterday at the school they might as well find transportation in the morning. Well, they came here, and we can't leave them standing out at the bus stop." In conversation with Deputy Whidden, a female student confirmed that some of the students had been told they would not be allowed on the bus for the rest of the year.11 Officer Marston and Mr. Auckerman arrived at the bus stop at 7:31 a.m. When they arrived, most of the students had already disembarked. At no time did Mr. Auckerman tell Ms. Waiters that the students on the bus should call their parents or be transported by Sheriff's deputies. Ms. Waiters' testimony to the contrary is not credited. Mr. Auckerman, Officer Marston, and Deputy Whidden drove students to Palmetto High School. The bus began to run again at 7:37 a.m., 44 minutes after it stopped at 29th and 9th. The bus made only one more stop before arriving at Palmetto High School. This stop occurred at 7:43 a.m. Two students boarded the bus. Bus 537 is scheduled to make five stops after 29th and 9th. Because of the delay, Ms. Waiters called the driver of Bus 534 to cover some of Bus 537's stops. However, not all of Bus 537's stops were covered, and Bus 534 was 15 to 20 minutes late picking up some of the students. Further, Bus 537 was scheduled to make an elementary school run after it dropped off students at Palmetto High School. The bus made only one of its nine scheduled stops for elementary school students because the parents of most of those students had given up on the bus and either driven their children to school or had the children walk.12 During the 2008-2009 school year, classes began at Palmetto High School at 7:45 a.m. Bus 537 typically arrived at Palmetto High School at 7:20 a.m. On Wednesday, February 11, 2009, Bus 537 arrived at Palmetto High School at 7:57 a.m., twelve minutes after the final bell. After the bus arrived at Palmetto High School, Ms. Waiters and Mr. Rodriguez went into the school and spoke to Mr. Auckerman. They presented him with the list of names that they had used to identify the misbehaving students on Bus 537. Mr. Auckerman told them that he would need referrals before he could take any disciplinary action against the students. Ms. Waiters and Mr. Rodriguez submitted some referrals on Wednesday, February 11, then submitted additional referrals on Thursday, February 12. The referrals described student misbehavior, such as failing to be silent at railroad crossings and using cell phones, but gave no indication that either Ms. Waiters or Mr. Rodriguez ever feared for their safety on Bus 537. Mr. Rodriguez testified that the only time he feared for his physical safety was when he had to drive the noisy bus over railroad crossings. He did not fear any sort of physical assault by the students on the bus.13 Mr. Auckerman passed on the referrals to Palmetto High School's parent liaisons, Robert Kelly and Kevin Jackson. "Parent liaisons" are School Board employees responsible for general disciplinary referrals and communicating with parents regarding student behavior and discipline. The principal of Palmetto High School has delegated the authority to issue bus suspensions to the parent liaisons. On Friday, February 13, Mr. Kelly interviewed some of the students. He decided that the referred students would be suspended from riding the bus, commencing Tuesday, February 17. However, as Mr. Kelly and Mr. Jackson were about to finalize the suspensions by entering the referrals into the computer system, Mr. Auckerman halted the suspension process pending a School Board investigation into the events of the morning of February 11. Mr. Auckerman was reacting to parent complaints about Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of transportation, also began receiving complaints. Mr. Palmer spoke with Ms. Waiters, safety officer John Searles, and school personnel, and was unsettled by the inconsistency of their stories. On or about February 18, 2009, Mr. Palmer referred the matter to the OPS. Ms. Horne then began her investigation of the incident. At the conclusion of her investigation, Ms. Horne presented a written OPS investigatory report to her supervisor and scheduled a meeting of all persons in Ms. Waiters' chain of command, up to Mr. Palmer, the transportation director. At a meeting on March 19, 2009, the School Board personnel met and recommended to the Superintendent that Ms. Waiters' employment with the School Board be terminated. The Superintendent concurred with the recommendation. Aside from contending that she was merely carrying out suspensions issued by Mr. Auckerman, which was completely at odds with the credible evidence produced at the hearing, Ms. Waiters' chief defense was that her actions on February 11, 2009, were consistent with the action she took in an incident that occurred on Wednesday, January 28, 2009, for which the bus driver received a laudatory write-up in the local newspaper and the praise of law enforcement and school officials. In the earlier incident, a substitute driver on a morning route to Lakewood Ranch High School pulled the bus over on State Road 64 and refused to continue because she believed the students' actions were placing her and the students in danger. In particular, the students were rocking the bus back and forth to the point that the driver feared losing control. Ms. Waiters drove out to the scene, followed shortly by at least six Sheriff's deputies. Ms. Waiters described the students as "out of control," "hanging out of the windows, yelling and cursing, throwing stuff out of the windows, rocking the bus." Ms. Waiters boarded the bus and was able to calm some of the students. The Sheriff's deputies called the parents of the troublemaking students and gave them the choice of picking up their children or having them taken to the JDC. According to Ms. Waiters, some students actually fought with their parents and had to be forcibly taken to the juvenile detention center. The next day, the local newspaper ran an article containing praise for the substitute bus driver. The principal of Lakewood Ranch High School and a spokesman for the Sheriff's Office were both quoted saying that she "did the right thing." Though Ms. Waiters was not mentioned in the article, it is clear from her testimony that she believed the praise was reflected on her. The differences between the incidents of January 28 and February 11, 2009, are clear. In the earlier incident, law enforcement was summoned to deal with an immediate, on-going dangerous situation. Sheriff's deputies took charge of the matter, with some assistance from Ms. Waiters, and concluded that the bus driver had done the right thing in stopping the bus when it became too hazardous to continue. In the February 11 incident, the videotape makes plain there was no danger whatever. Once allowed to board the bus, the students took their seats and talked among themselves. There were no threats, no disturbances, no rocking of the bus. Ms. Waiters' claim that she felt threatened was unsupported and not credible. The students, with good reason, appeared mostly puzzled as to what was happening. From the incident of January 28, 2009, Ms. Waiters apparently took the lesson that she was authorized to stop the scheduled running of a school bus for nearly an hour and to call out Sheriff's deputies to assist her in disciplining students for misbehavior that occurred on previous days. This was the wrong lesson. Ms. Waiters acknowledged that she did not have authority to suspend students from the bus, and claimed that she was not "suspending" the students; rather, she was restoring "order and control" on the bus for the students' safety.14 Ms. Waiters' actions might have been partially justified had there been some imminent danger such as that on the Lakewood Ranch High School bus on January 28, 2009, though even in that situation it was Sheriff's deputies, not Ms. Waiters, who removed the problem students from the bus. On Bus 537 on February 11, 2009, in the absence of any immediate threat or even untoward behavior by the students, Ms. Waiters took it upon herself to halt the bus and require students to phone their parents for rides to school well before law enforcement arrived on the scene. Ms. Waiters' actions were disproportionate to the situation on the bus, and constituted "suspensions" of the students under any reasonable understanding of that term. Ms. Waiters' actions on the morning of February 11, 2009, might merit discipline short of termination had Ms. Waiters fully and honestly cooperated in the subsequent investigation. However, Ms. Waiters stubbornly told a convoluted and contradictory version of events that made little sense on its face and was at direct odds with the consistent and credible testimony of School Board personnel and law enforcement officers who were present during the relevant events, and at odds with the direct evidence of the videotape from Bus 537. Ms. Waiters lack of candor throughout the process, coupled with the extremely poor judgment she employed in stopping the bus and suspending students without immediate cause or authority, fully justifies the School Board's decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Manatee County School Board, enter a final order that terminates the employment of Respondent, Stephanie Waiters. DONE AND ENTERED this 1st day of February, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2010.
