The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue Whether 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 Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
The Issue The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.
Findings Of Fact On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after 4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez. When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus, and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated. Nor should the use of profanity and the lack of respect by the students be tolerated. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus. Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West Bay. When she stopped at 20th Street, she advised dispatch that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity. Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students. Section 9.02 of Handbook provides: 9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides: 10.5.2 Handling Serious Problems Tips on handling serious problems: Follow your school's procedures for discipline or refusal of rights to ride the bus Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway. Secure the bus. Take the ignition key with you if you leave your seat. Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business. If a change of seating is needed, request that the student move to a seat near you. Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.
The Issue The issues in this case are whether, as the district school board alleges, Respondent got into a scuffle with a student; and, if so, whether such conduct constitutes just cause for Petitioner's dismissing Respondent from his position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent José Lopez ("Lopez") as a bus driver, a position he has held since 2008. The events in dispute occurred on the afternoon of March 9, 2016. At the time, Lopez was working as a "spare driver," meaning that, instead of being assigned to a regular route, he drove to different locations as needed. This particular afternoon, the dispatcher directed Lopez to make a late pickup at Forest Hill Community High School ("Forest Hill") in West Palm Beach because the regular driver's bus had broken down. Lopez had some trepidation about accepting this assignment because he was familiar with the route in question and considered it dangerous due to the behavior of the students. Nevertheless, he proceeded to Forest Hill as instructed. The bus was behind schedule when Lopez arrived at the school, through no fault of his. The other busses already had pulled away, and the students waiting for Lopez's bus were standing in the road (or "bus loop" as it is called). As the bus pulled up, some students began running beside it, creating a potentially dangerous situation. The administrator on bus duty, Dr. Demetrius Permenter, ordered Lopez to drive around the loop again, so that he could get the students out of the road and under control. Lopez complied. On his second approach, Lopez parked the bus and opened the side-entry double doors, which are located at the front of the bus, opposite the driver (to his right when driving). The students jostled and pushed each other as they rushed to board the bus. Again fearing that someone might get hurt, Dr. Permenter told the students to stop boarding and——to prevent others from entering——instructed Lopez to close the doors. Lopez complied. As the doors closed, students continued to dash in, disobeying Dr. Permenter. The last student to board the bus was Michael Clark, then 17 years old. Although he had bolted inside the bus at the last second, Michael could not proceed to a seat because his arm (or the arm of his jacket) got caught between the doors as they shut, trapping him at the bottom of the interior steps. Fortunately, Michael was not hurt, which was obvious to everyone around, for he began to laugh at the somewhat comical position he had placed himself in. Others, including Dr. Permenter, chuckled too, and Lopez raised his hands, palms forward, in an exaggerated gesture of mock exasperation, before opening the doors, freeing Michael. All told, the student was stuck for about five seconds. To this point, the atmosphere had been one of energetic merriment. The students had been excited, boisterous, and generally in high spirits. But suddenly, the mood changed. As Michael climbed the steps onto the bus, he angrily demanded to know why his arm had been stuck "in the damn door so fucking long." Dr. Permenter clearly heard this disrespectful outburst and knew immediately that "some[thing] was going on." Tr. 96. Lopez thought, "Something is coming. I don't wanna do it." Tr. 335. At hearing, Dr. Permenter testified that Michael's statement could have been perceived as aggressive, Tr. 108, but he did not view it that way at the time, perhaps, in part, because he could not see Michael's face. Tr. 132. Lopez rose from his seat. Although Michael's belligerent query had not been overtly threatening, it carried an unmistakable whiff of menace——enough, clearly, to put a reasonable person on guard. Sitting behind the wheel placed Lopez in a vulnerable position vis-à-vis Michael. Therefore, rising to his feet sensibly increased Lopez's options for fight or flight, should it come to that, and reduced the risk that he would be set upon by an attacker looming over him, raining down blows. In sum, because Michael had addressed Lopez, not as an authority figure, but (at best) as a peer and possibly as prey, Lopez's decision to stand was reasonable under the circumstances. Lopez, who had stood up next to the right edge of the driver's seat, turned to his right to face Michael, who was drawing near, and asked, "What's your problem, man?" In the blink of an eye, the two began to tussle. The question at the heart of this dispute is: Who initiated the physical altercation? The District alleges that Lopez panicked and lashed out at a student merely for using foul language.1/ Lopez claims that he acted reasonably in self-defense after Michael attacked him. Accounts of the next few relevant moments differ sharply, which is par for the course. What is worse, from the fact-finder's perspective, is the thinness of the evidence. The two protagonists were the only witnesses at hearing having personal knowledge of all the relevant facts, and both were relatively inarticulate; they each gave testimony that was neither precise nor explicit. The other eyewitness, Dr. Permenter, described the events with admirable precision, as far as his testimony went, but he did not see everything and could not say whether Lopez or Michael had been the aggressor. Then there are the two surveillance videos ("3A" and "3B"), which together amount to a virtual witness who "testifies" through the sound and images recorded by the cameras mounted on the bus. Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume casually that the assertive narrative of any given video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to past events, for video merely represents, imperfectly, the real events captured on camera. Of necessity, each member of the audience projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in videos 3A and 3B based upon a critical review of the films in conjunction with a careful consideration of all the available evidence. Michael testified that after Lopez stood up, he (Lopez) reached for Michael's neck, which initiated the tussle. Video 3A persuasively rebuts Michael's testimony in this regard. Lopez clearly did not reach for Michael's neck——not right away, anyway. Unfortunately for purposes of this case, however, video 3A does not persuasively describe the entire event, as a result of the static position of the camera. Video 3A was shot by a camera mounted at the front of the bus, over the driver's left shoulder (as he faces forward). The angle of the shot gives the viewer the perspective of looking down, from the left side of the bus, onto the front inside area of the vehicle, which encompasses the driver's seat (closest to the camera); the landing at the head of the center aisle, onto which passengers step after ascending the front steps inside the vehicle; the first few rows of passenger seats; and the side-entry double doors located to the driver's right. The disputed event took place largely within sight of this camera. A major drawback of video 3A is that when Lopez stood up, his body got between the camera and Michael, giving us a good shot of Lopez's back, but blocking our view of Michael. Thus, we cannot observe which one made the first physical contact. Despite its limitations, video 3A provides much useful information. As mentioned, there is a landing at the head of the center aisle, which is adjacent to the driver's seat. The center aisle is bordered by silver edging trim (also known as transition strips). The passenger seats and the driver's seat are outside these strips. When Lopez stood and turned to face Michael (as Michael climbed the steps and approached), the driver planted his feet mostly on "his" side of the edging trim; only the toes of his shoes touched the landing. Next to his right foot was a waste basket located on the driver's side of the trim, near the driver's seat. Lopez's calves were quite close to his seat. Simply put, when Lopez stood and faced Michael, he occupied his work station. It was Michael who walked across the landing and got into Lopez's face, while Lopez was standing——literally——in his own personal space. Facing each other, the two briefly exchanged words, but the evidence is insufficient to permit the undersigned to make a finding as to what was said. During this short verbal encounter, Lopez's arms remained at his side. Also, Lopez's feet stayed on his side of the driver's area. It should be understood that, at this moment, Lopez was basically standing his ground, for he was effectively trapped. Unlike Michael, who had the freedom to exit the bus or proceed down the aisle via unobstructed paths, Lopez could not escape except by getting past Michael. For Lopez, retreat meant falling back into his driver's seat, which would have put him at a disadvantage. Video 3A shows that, as the two talked, Lopez abruptly stepped sideways and backwards on his right foot, which bumped into the waste basket. Lopez appears to be reacting to something, and has perhaps been knocked off balance, but Michael's actions cannot be made out because Lopez's body is in the way. After regaining his footing, Lopez reached forward with his right hand while leaning slightly to the right, as if he were going to embrace Michael, and took a step forward with his left foot, raising his left hand towards Michael's waist in a motion that, again, looks like the start of a hug, except that Michael's right arm would have been pinned against his body had Lopez succeeded in getting his arm around the student. Simultaneously, Michael slipped his left hand under Lopez's right arm and grabbed the driver's left shoulder, while using his right hand to take hold of Lopez's left shirt collar. Here, Michael clearly went on the offensive, driving Lopez forcefully back and pushing him into the driver's seat. Lopez got back to his feet, and Michael slammed him hard into the steering wheel and driver's seat. Lopez used his arms in an attempt to protect himself, but Michael began to overpower the driver. At about this time, Dr. Permenter entered the bus, and he reached out immediately to restrain Michael. At the same time, Lopez bounced up and managed to push Michael back a step or two, reaching unsuccessfully for his neck. At hearing, Dr. Permenter recalled that Michael seemed to calm down and stop struggling upon the administrator's arrival. Video 3A rebuts this testimony. As it actually happened, Michael advanced on Lopez and pushed the driver backwards, nearly into the steering wheel, as Dr. Permenter tugged on Michael's arm to pull him away from Lopez. In response, Lopez lunged forward and reached again with both hands for Michael's throat. The School Board uses a screenshot from video 3B capturing this moment that appears to show Lopez choking or strangling Michael. But, though arresting, this particular still is misleading because, whereas the screenshot gives the impression that Lopez had locked his hands around the student's neck, the video shows that in real time the driver's hands were actually in that visually dramatic position for just a split second before releasing. In truth, if Lopez even made contact with Michael's throat, it was an extremely brief touch. Lopez, obviously agitated, exclaimed, "Get out of here, motherfucker!" Dr. Permenter stepped between Lopez and Michael, and said, "Uh uh, let him go, let him go." Without hesitating, Dr. Permenter then threw his body into Lopez, and knocked the driver back into his seat, separating Lopez and Michael. Michael was yelling at Lopez and Dr. Permenter, but his words, as recorded on the videos, cannot be understood. With that, the altercation was over. Shortly thereafter, Michael was escorted off the bus. The District alleges that it has just cause to fire Lopez based upon the following allegations of material fact: As [Michael] was entering the bus, Mr. Lopez closed the bus doors, thereby trapping the [student] in the doors. * * * [Later, d]uring the investigation . . . , Mr. Lopez stated that he accidently closed the bus door on [Michael]. In fact, Michael did become caught in the doors by accident——an accident for which he (Michael), having disobediently boarded the bus knowing that the doors were shutting, was 100% at fault. Lopez, who had closed the doors on Dr. Permenter's order, was blameless in connection with this mishap. After several seconds, Mr. Lopez opened the door. As [Michael] walked up the steps of the bus, [he] questioned Respondent about being caught in the doors. In fact, Michael rudely barked, "Why was my arm stuck in the damn door so fucking long?" Michael was, of course, way out of line in making this menacing remark to the driver, who reasonably rose from his seat in a self-protective maneuver. Respondent is seen [in video 3A] stepping towards the victim and using his body to make contact with [Michael]. In fact, Lopez clearly stood his ground near the driver's seat. It was plainly Michael who moved toward Lopez, not the other way around. Lopez did make contact with Michael, but it is quite possible that Michael made physical contact with Lopez first. The evidence is ambiguous as to the question of whether Lopez or Michael struck first. Mr. Lopez and [Michael] engage[d] in a physical tussle, until they [we]re separated by a school staff member that boarded the bus. Once separated, Mr. Lopez again lunged at [Michael] and made physical contact with the student, which caused a second scuffle. A school staff member got between Respondent and [Michael] and broke up the altercation. Without a doubt, there was a tussle, but there was not, in fact, a "second scuffle" for which Lopez was somehow primarily responsible. The two combatants, in fact, were not actually "separated" until Dr. Permenter threw himself into Lopez and knocked the driver down. Until then, both individuals had thrust and parried with their arms, hands, and legs. During the struggle, Michael was as, if not more, aggressive than Lopez, who was, very possibly, merely defending himself, as he maintains. During the incident, Mr. Lopez used profanity. Lopez admitted this allegation, which was proved, in any event, by clear and convincing evidence, as he can be heard calling Michael a "motherfucker" in the video. The context, however, is crucial. The bad word or words were uttered by Lopez, not gratuitously, but in the heat of battle, when emotions were high and Lopez was understandably and justifiably angry at Michael. In contrast, Michael used profanity gratuitously in the absence of conflict, without justification, when he boarded the bus——far worse conduct.2/ Lopez's use of profanity, under the circumstances, was a de minimis infraction, not just cause for dismissal. The upshot is that the District failed to prove by clear and convincing evidence the essential allegation against Lopez, namely that he had initiated and escalated a physical altercation with a student. As far as establishing who the aggressor was, the evidence is ambiguous. Although Lopez did not have the burden to prove his innocence, he presented evidence sufficient to raise the genuine possibility that he had acted in self-defense, not in retaliation, using reasonable force to protect himself from harm while under attack. This genuine possibility precludes the undersigned from forming a firm belief or conviction, without hesitancy, that Lopez acted in an unjustifiably aggressive or retaliatory fashion, as charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order exonerating Lopez of all charges brought against him in this proceeding. DONE AND ENTERED this 16th day of March, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2017.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN 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 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, 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 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
The Issue Whether Respondent, a non-instructional employee of Petitioner, should be dismissed on charges that he made unwelcome and offensive sexual advances toward several female employees over whom he had authority.
Findings Of Fact Respondent, Dan Quinn, has been employed by the School Board for 16 years. From July 1981 until November 1985 (when he was charged with misconduct and suspended from duty), he was employed as a driver trainer. In that position he not only trained school bus drivers, but assigned them school field trips for which they received extra pay. His other job duties included assisting the Supervisor of Transportation in coordinating bus routes and communicating with bus drivers assisting bus drivers with disciplinary problems on buses and riding buses when necessary: assisting mechanics in maintaining service and gas records in gassing buses, obtaining parts, and taking buses to inspection stations: serving as a substitute bus driver when necessary: and "other duties as assigned by the Supervisor of Transportation." (Resp. Exh. 5) The job of bus driver trainer is a non-instructional position. Respondent did not have a written employment contract with the School Board. II. The School Board has adopted Rules 4.3.2 and 4.3.3, internal rules not published in the Florida Administrative Code; which provide grounds and procedures for suspending and dismissing non-instructional school employees: Suspension Procedure The Superintendent has the authority to suspend non-instructional school employees for emergency reasons, and shall notify the Board immediately of such suspension. The suspension shall be reviewed by the Board at its regular or special meeting, at which time the employee shall be restored to duty or the Superintendent shall be authorized to serve noticed on the employee of charges against him and the date and place of hearing before the Board; at which all parties shall be heard on all matters relevant to the suspension and the employee's continued employment. Upon conclusion of the hearing; the Board shall restore the employee to duty, dismiss the employee; or otherwise adopt the recommendations of the Superintendent. For the purpose of this rule the term "emergency" includes, but is not necessarily limited to; any situation arising from the conduct of any Board employee for which the Board may find cause to dismiss the employee, such as immorality, intoxication while on duty, gross insubordination; willful neglect of duty, assaults upon other persons, incompetency, unjustified interruption of the orderly conduct of a school or any school activity, conviction of any crime involving moral turpitude or other misconduct. * * * Dismissal of Employees Dismissal of non-instructional personnel from employment by the Board shall be as follows: * * * If the quality of the employee's work is unsatisfactory and unacceptable, the Superintendent may recommend dismissal of the employee. (Petitioner's Exh.2) III. J.F. has been a bus driver employed by the School Board since 1970. At approximately 6:15 a.m. on one morning in January or February 1983, while she was sweeping her school bus before leaving on her route, Respondent entered the bus and passed her in the aisle. After she was seated in the driver's seat, he approached her and, while standing to her right (in the bus aisle), put his left arm behind her neck and around her left shoulder and placed his hand on the side of her breast. He then tried to kiss her on the right cheek. She told him to "knock it off," and "get off the bus." He complied but, while stepping off the bus, told her that, "If you're not good to me, I don't have to give you all these field trips," referring to the lucrative field trips which he assigned to bus drivers. She was embarrassed and offended, but did not report the incident for fear that she would lose her job. (At that time, she did not know whether Respondent had made similar advances toward other bus drivers: she also believed Respondent to be a good friend of Charlie Horn, the Supervisor to whom she would address her complaint.) (Tr.9) There is no evidence that Respondent ever again made a sexual advance toward J.F. or touched her in an offensive manner. Nor did he carry out his threat to deny her field trips. In school years 1982-83, he assigned her six field trips; in 1983-84, seven. IV. Another incident involving Respondent occurred in 1979 or 1980--five or six years before it was used as grounds to suspend and dismiss him. In the bus garage--at approximately 2:00 p.m. on a school day--Respondent approached M.S., another female bus driver, and asked her what time she would return from her route. She told him and he replied, "well, I'm going to have the air turned on upstairs in the meeting room so you and I can go up there and have some fun," or words to that effect. (Tr.34, 41, 52) She interpreted this as a request for "some kind of sex," and was offended. (Tr.39) She told him that there would be "no way" she would go up there with him. (Tr.41) He laughed and walked away. V. The next incident involving Respondent occurred on a school day in November 1983--two years prior to its being used as a basis for suspending and dismissing him. A.H., another female bus driver, was in the bus barn in Kissimmee. She had recently been hired. As the other drivers left for a field trip to the Tupperware Auditorium, about 8:45-9:45 a.m., Respondent approached and asked her to go upstairs to a classroom with him so he could show her something. She complied and accompanied him to the classroom. Once inside he turned off the lights, shut the door, reached for her and tried to hug her. She switched the lights back on; he turned them off again. She protested that she didn't want to do this; and she didn't "play games like this." (Tr.63) He put his hand on her breast; she tried to push him away. He then tried to slip his hand inside her pants. She switched the lights back on; he switched them off. He then agreed to go downstairs, saying, "Don't be mad now, I was only kidding; only fooling around." (Tr.64) Although his actions were unwelcomed and offended her, she agreed to forget it. Later, he asked her if she was mad; although she was still angry; she said, "No." (Tr.64) She did not report the incident because she was a new employee and feared losing her job or being labeled as a troublemaker. Almost two years later, A.H. had another unpleasant encounter with Respondent. After inviting her to his office and resolving a problem she had with a newly assigned route, he said, "See what I did for you." (Tr.65) He then began hugging her and tried to kiss her. She pushed him away, and tried to go out the door. He held her by the arm; pushed her back against the closed door and began rubbing up against her. He then left, telling her not to be mad, he was just kidding. These advances, also, were unwelcomed and offended her. VI. Another incident occurred in October 1984. Respondent approached M.S., another female bus driver. She was standing in the hallway, he put his arm around her and "took a hold" of her right breast. (Tr.96) She considered this an unwelcomed sexual advance and was offended by it. Later in that school year, Respondent told her that he controlled the assignment of field trips and could "throw a lot of money [her] way." (Tr.97) She replied that she had a second job and did not need field trips. She reasonably interpreted his comment as an implied suggestion that if she submitted to his advances; she would receive employment benefits. VII. J.B. was another female bus driver employed by the School Board. At approximately 6:15 or 6:30 a.m., during a school day toward the end of 1983, she was sitting in the driver's seat on her bus; checking it out before leaving on her route. It was still dark. Respondent entered the bus and placed his hand on her thigh, with his fingers "going down between" her thighs. (Tr.119) She brushed his hand away. She did not report this incident because she thought she would not be believed. VIII. Respondent flatly denies that these incidents ever took place. His denial is rejected as unpersuasive. The testimony of the women who received his unwelcome advances is, however, accepted as credible and worthy of belief. These witnesses had no discernible bias or motive to falsify. They were candid and factual, though it was obviously difficult and embarrassing for them to testify. IX. Except for the complaint of incidents, there is no evidence that Respondent, over the last 16 years, has been other than a responsible and satisfactory employee for the School Board. He never received a bad evaluation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be suspended (without pay) from his employment for one year, commencing in November 1985, and that any reinstatement be conditional upon the availability of a comparable position for which he is qualified. He should not, however; be returned to his former position; and That; within 10 days of entry of a final order, Respondent pay the School Board the sum of $200.00 as attorneys' fees which it incurred in obtaining an order compelling discovery; dated April 15, 1986. D0NE and ORDERED this 29th day of August, 1986, in Tallahassee; Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.
