Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
The Issue The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
Findings Of Fact Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff. For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years, Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints. In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school. In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began videotaping the director from the street to document what Respondent viewed as illegal behavior. The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school. However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds. Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian. Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information. Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands. While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids, who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year. The problem with the school bus driver began in 2002. Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus. Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored by the superintendent, Respondent contacted a school board member and asked for a meeting. Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation. The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children. After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop cutting through the occupied classroom--a directive that Respondent repeatedly ignored. Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington. On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting. The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations. Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them. Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial. Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem. By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70. By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment. Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004. COPIES FURNISHED: John Padget, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott E. Siverson Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Scott C. Black Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Diane Scott Post Office Box 501586 Marathon, Florida 33050
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
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 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 issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Patricia Banks', employment as a school bus operator based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since October 31, 2001, Respondent has been employed by the School Board as a school bus operator. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). In September 2004, Respondent was assigned to drive a morning route and an afternoon route. Her morning route ended at about 10:00 a.m., and her afternoon route commenced at about 1:30 p.m. Respondent's daughter, India Miller, also worked as a school bus operator for the School Board. On September 20, 2004, between her morning and afternoon routes, Respondent drove her daughter to the Wal-Mart store on Colonial Boulevard in Fort Myers. Ms. Miller's car was not running, and she was in the process of moving into a new residence. She had asked Respondent to take her to Wal-Mart to purchase cleaning supplies and to look into buying a new computer. Respondent and Ms. Miller were wearing their School Board bus driver uniforms. Respondent parked her car in front of the store, but near the garden department, which is on the side of the building along with the automotive department. Respondent and Ms. Miller entered the building through the front or "general merchandise" ("GM") entrance. Respondent and Ms. Miller proceeded to the electronics department to look at computers. They were assisted by David Heady, a sales associate in the electronics department. Mr. Heady testified that Respondent asked him several questions about the functionality of a certain computer, an eMachines desktop model priced at $698.00. Each woman said she wanted one of the computers, but Mr. Heady had only one of them on the floor. He put that one in a shopping cart for Respondent, then proceeded to the storeroom to get a second computer for Ms. Miller. When he returned with the second computer, about three minutes later, Mr. Heady noticed that Ms. Miller and the first computer were gone. Respondent told him that Ms. Miller had taken the computer to the front of the store to check out. This disturbed Mr. Heady because it is Wal-Mart's policy that all computers should be paid for in the electronics department. Mr. Heady's suspicions were also somewhat aroused by the fact that it was Ms. Miller who took the first computer out of his department, when it was Respondent who had asked for it. According to Mr. Heady, Respondent started toward the front of the store with the second computer, but Mr. Heady stopped her and told her she had to pay for it in the electronics department. Respondent paid cash for the computer, a total of $739.88, then left the electronics department. Mr. Heady then called the loss prevention office and spoke with loss prevention officer, Bernard "Bo" Lee, to inform him that a computer that had not been paid for had been removed from the electronics department. He testified that he checked out Respondent before alerting loss prevention of the missing computer because he did not want a confrontation with Respondent. Mr. Heady also informed his supervisor in the electronics department, Terrell Russ, about the missing computer. Mr. Russ, in turn, made his own call to loss prevention and spoke with another loss prevention officer, Mickey Holman. Respondent testified that she and her daughter went into the electronics department because her daughter wanted a new computer. Respondent stated that she knows very little about computers and that it was Ms. Miller who was asking technical questions of Mr. Heady. Respondent did ask if Mr. Heady had a second computer because she was interested in placing one on layaway for her sons. Respondent testified that there was no computer on the floor of the electronics department. When her daughter told Mr. Heady she wanted to buy the model under discussion, he had to retrieve it from the storeroom. Respondent testified that she waited for Mr. Heady to bring the computer while Ms. Miller shopped for her cleaning supplies. Mr. Heady returned with the computer and told Respondent that she would have to pay for the computer before she could take it out of the electronics department. Respondent called Ms. Miller on her cell phone and told her that she had to come back to the electronics department to pay for the computer. Respondent also asked Ms. Miller if she could afford to lend her the money to place a computer on layaway. Ms. Miller responded that she would not know until she completed her purchases. Respondent could not recall whether Ms. Miller told her that she was coming back to purchase the computer. Respondent left the electronics department and walked to the in-store McDonalds to eat lunch. Finding the McDonalds too crowded, she went outside to smoke a cigarette. The one piece of documentary evidence available at the hearing was the Wal-Mart receipt for the purchase of the computer. The receipt indicates that the computer was purchased with cash in the electronics department, though it does not establish whether it was Respondent or Ms. Miller who made the purchase. Respondent's testimony agrees with that of Mr. Heady on one point: Ms. Miller left the electronics department and was separated from Respondent for at least several minutes. Messrs. Lee, Holman, and Russ all observed Ms. Miller during the time she was separated from Respondent. Mr. Lee testified that he was patrolling the floors of Wal-Mart to watch for shoplifters. He noticed three black women, including Ms. Miller and two unidentified women, placing an eMachines computer in a shopping cart. Mr. Lee stated that the eMachines computers were a "hot item," and he, therefore, paid special attention when customers placed them in shopping carts. Though he had seen Respondent with the other women in the electronics department, Mr. Lee did not see her touch the computer. Mr. Lee stated that he followed Ms. Miller to the front of the store. Respondent was still in the electronics department. Mr. Lee observed Ms. Miller push the cart holding the computer to the line of cash registers, through the line, past the greeter who checked her receipt, and out the GM entrance. Though he did not specifically observe Ms. Miller pay for the computer at the front registers, Mr. Lee assumed that it had been paid for because the greeter allowed her to leave the store without incident. From just inside the GM doors, Mr. Lee watched Ms. Miller walk to a car in the front parking lot. Mr. Lee did not see Ms. Miller load the computer into the car, but he did observe her re-enter the store a few minutes later, without the computer, but carrying a Wal-Mart receipt. He followed Ms. Miller to the toy department, where she met Respondent and the two unidentified women standing near a shopping cart containing a second eMachines computer. Mr. Holman testified that after being radioed by Mr. Russ that a computer had been taken from the electronics department by one of two women in school bus driver uniforms, he began searching the store. He observed Ms. Miller go through the checkout area and past the greeter, who signaled that Ms. Miller had a receipt for her computer. Mr. Holman radioed to the electronics department and told them there was no problem, that the woman had paid for the computer. The person in electronics who answered told Mr. Holman that there was a second computer. Mr. Holman went to look for the second computer while Mr. Lee maintained his surveillance on Ms. Miller. Mr. Holman found the missing computer sitting in an unattended shopping cart in the toy department. After a minute or two, he saw Respondent approach the cart. Then, two other women joined her, and they began talking. Mr. Holman stated that Respondent approached the cart several times, but did not actually touch or take hold of it. After a few minutes, Ms. Miller approached the group of three women. Mr. Lee followed her and maintained his surveillance apart from Mr. Holman. Both loss prevention officers were out of earshot of the four women. Mr. Lee recalled that Ms. Miller handed the receipt to Respondent at that point, though they later passed it back and forth more than once. After some conversation, the two unidentified women walked away. Ms. Miller began pushing the cart containing the computer toward the automotive department called the "TLE" for "Tire and Lube Express." Respondent walked in front of the cart. Mr. Lee noted that exiting through the TLE in the rear of the store would require Respondent and Ms. Miller to walk around the outside of the store to reach the front parking lot and that exiting through the GM entrance would be much more convenient. Mr. Lee testified that this behavior alone would have aroused his suspicions. The women guided the cart out through the TLE entrance. Ms. Miller pushed the cart, and Respondent lifted the front of the cart over the metal strip in the doorway. The electronic article surveillance ("EAS") system did not sound an alarm. Mr. Lee testified that it is not unusual for the EAS system not to sound, and he attached no significance to its silence. After the women were outside the store, Mr. Lee and Mr. Holman approached and asked them to return to the store. Ms. Miller told the men they had scared her. She said, "I pissed myself [sic]." Ms. Miller also told Mr. Lee that she had a receipt for a computer. Mr. Lee found it significant that she said "a computer," rather than "this computer." Mr. Lee and Mr. Holman escorted the women to the loss prevention office. Ms. Miller, ultimately, admitted to stealing the computer. Respondent denied doing anything wrong and was visibly upset when she was detained. In the loss prevention office, Respondent called her employer on her cell phone to arrange for someone to cover her afternoon bus route. None of the Wal-Mart employees present in the loss prevention office could recall Respondent's making any statement that could be construed as incriminating. The local police arrived, and both women were arrested. Ms. Miller subsequently resigned her employment with the School Board. At the time of the hearing, Respondent's criminal case had not been resolved. Again, Respondent told a different story. While she was smoking her cigarette outside, Respondent began to worry about finishing the shopping in time to drive her afternoon bus route. She called Ms. Miller on her cell phone and asked how much longer she would be in the store. Ms. Miller told Respondent that she was paying for her merchandise and asked Respondent whether she had seen her in-laws in the store. Respondent said that she had not seen them and asked where they were. Ms. Miller told her that she last saw them in the toy department. Respondent finished her cigarette, then walked back into Wal-Mart. She walked to the toy department and found her relatives where Ms. Miller had last seen them. Respondent noted that they had a computer in a shopping cart. One of the in-laws told her that it was Ms. Miller's computer, and they were waiting there for Ms. Miller to return. Ms. Miller arrived, took control of the shopping cart, and asked Respondent if she was ready to go. Respondent saw a Wal-Mart receipt in her daughter's hand. Ms. Miller told Respondent that she needed to buy something in the automotive department. Ms. Miller pushed the cart toward the rear of the store, where the TLE was located. When they reached the TLE, Ms. Miller began asking questions of the sales associate. Respondent interrupted her, saying they had to leave in order to make their afternoon bus routes. Ms. Miller pushed the cart out the TLE entrance, and they were approached by Messrs. Holman and Lee, who told them they needed to come back inside. Ms. Miller said, "Oh, shit. You're gonna make me piss on myself." Respondent wondered why Ms. Miller was reacting so strongly, if she had done nothing wrong. Respondent was adamant that she had no idea Ms. Miller was attempting to steal a computer. Respondent believed Ms. Miller had paid for the computer. Respondent testified that she and Ms. Miller had both worked for Wal-Mart in the past, and both knew that a customer is not allowed to take a computer from the electronics department without paying for it. Ms. Miller apparently had a receipt for the computer. Respondent testified that it never crossed her mind that Ms. Miller would steal a computer; that she believed her daughter "had better sense than that." Based upon the testimony of all the witnesses, including the deposition testimony of Messrs. Lee and Holman, and the documentary evidence, it is found that the School Board did not prove by a preponderance of the evidence that Respondent stole a computer from Wal-Mart. The evidence certainly demonstrated that Respondent's daughter, Ms. Miller, attempted to steal a computer. However, even if the testimony of the School Board's witnesses were accepted in its entirety, no witness definitively linked Respondent to the computer in such a way as to demonstrate her guilty knowledge that it was being stolen. The testimony of Mr. Holman cannot be credited. After detaining Respondent and Ms. Miller, Mr. Holman prepared a written report attesting that he observed Ms. Miller purchase a computer in the electronics department and take it to her car, while Respondent selected another computer, put it in a shopping cart, and took it to the toy department. In his pre-hearing deposition, Mr. Holman testified that he saw Ms. Miller select and pay for a computer in the electronics department. During cross-examination during the final hearing, Mr. Holman conceded that he witnessed none of these events. Mr. Holman's efforts to explain his misleading statements were unconvincing. He essentially stated that his reporting practice was to write a first-person narrative commingling hearsay reports from other witnesses with his own personal observations. Thus, when Mr. Holman wrote, "I observed a female (India Miller) purchase a desktop PC in the electronics [department]," he actually meant that Mr. Lee observed the purchase and later told Mr. Holman about it. Mr. Holman's testimony must be disregarded because the undersigned cannot reliably distinguish between Mr. Holman's first-hand observations and the hearsay statements that he adopted as his own. The testimony of the remaining witnesses conflicted on key points. The evidence established that Mr. Heady was confused as to the time of day during which the relevant events occurred. Mr. Heady had no recollection of the two unidentified black women whom Mr. Lee stated were with Respondent and Ms. Miller in the electronics department. Mr. Lee stated that he saw Ms. Miller and the two unidentified women put a computer in a shopping cart. Mr. Heady testified that he placed the computers in the shopping carts. Mr. Heady testified that Respondent paid for the first computer. However, he also testified that it was Respondent who asked him technical questions about the computer's capabilities. Respondent credibly testified that she is ignorant about computers and that it was her daughter who was asking Mr. Heady the technical questions. It is likely that Mr. Heady's recollection was confused and that it was Ms. Miller who paid for the first computer. Respondent's narrative of the relevant events was not without its inconsistencies, but the burden was not on Respondent to establish her innocence. Respondent's narrative was credible as to the key point, that she did not know her daughter was attempting to steal a computer from Wal-Mart. The evidence presented by the School Board was insufficient to demonstrate that Respondent ever gave any indication, through her words or her actions, that she knew Ms. Miller had not paid for the computer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding her back pay and benefits retroactive to December 16, 2004. DONE AND ENTERED this 15th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2005.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
Findings Of Fact Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound. The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC). Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006. On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department. Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative. Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone. On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired. Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005. Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time. Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus. On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus. Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound. When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day. Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily. Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005. Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run. Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident. Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired. Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic. Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed. De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search. Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search. During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a knife blade estimated to be a two inch to two and a half inch blade, along with other tools. Respondent admitted to de Leon that the knife was his. He also admitted that he had placed the knife in the briefcase, but had forgotten it was there. In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen. Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows: Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite. Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin. De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past. De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office. Respondent was asked to come into de Leon's office. Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible. A union representative did not arrive at de Leon's office prior to Respondent's departure. De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife. De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted. However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office. Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon. The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon. The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will. Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse, from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises. Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on. Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances. Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound. Respondent ignored the deputy's advice and drove from the premises. Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative. Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year. FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996). DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2006.
Findings Of Fact At all times pertinent to the issues herein, Respondent, School Board of Hillsborough County, operated a school bus system for students attending the public schools run by it within the county. The program was and is administered by several different route coordinators who are authorized to hire the drivers for the buses operated on their routes. In September, 1985, Petitioner, William D. Gibbs, who had previously been working as a pipe fitter since 1972, applied for employment as a school bus driver in the Brandon area, for which Rosa Irene Barrow was the route coordinator. Mr. Gibbs could no longer perform the duties of a pipe fitter as a result of a work-related injury to his left knee incurred in 1984, but was fully capable of operating a bus. When he determined he could no longer work at his former trade, he began looking for other work, with a government agency, preferably, because of the benefits offered by most governmental employers. He applied for several county jobs and with the School Board with whose Job Line he kept in frequent contact. Mr. Gibbs submitted his written application for employment as a school bus driver in September, 1985, at which time he spoke with Ms. Barrow, discussing with her all aspects of his qualifications for employment as a school bus driver. One of the matters they discussed was the need for the applicant to have an appropriate place to park the bus when it was not in use. Petitioner assured her he had plenty of room to park it on the 9/10 acre grounds of the day care center his wife operated. Though Ms. Barrow claims she told Petitioner she didn't think a day care center was an appropriate place to park a school bus, it is found she made no comment to him regarding the suitability of the site he mentioned, nor did she give him any idea of whether or when he might be hired. Instead, she set up the required tests he had to take. Petitioner took and passed the required tests and was certified as qualified to drive a school bus. Several days later he spoke with Ms. Barrow who told him that they were not hiring drivers at that time, but to call back later on. Just about this same time, Mr. Gibbs also put in an application with the County's public bus system, (Heartline), and went to work there in January, 1986. He successfully completed his training program in February, 1986, and was assigned to work driving a bus, but quit before his probationary period was up because of abuse he received from his passengers and the danger of bodily harm. He was also accused of a fare impropriety but was later exonerated when the accusation against him was found to be based on a case of mistaken identity. When Mr. Gibbs left Heartline, he went to work for his wife at the child care center she operates, and still works there performing maintenance, running errands, working at the reception desk, and, periodically, driving the center's van. In May, 1986, he had another conversation with Ms. Barrow about his application for employment as a driver. Again he was advised that the county was not taking on any new school bus drivers. During the course of their conversation, Ms. Barrow asked Petitioner why he wanted to drive a school bus. Reportedly, she stated it was her experience that most men were not temperamentally suited to drive a school bus because they were over-aggressive in discipline. Ms. Barrow denies she said this, claiming that since he owned and operated a day care center, she felt he would be more likely to know what the problems were in dealing with children. If she did make that or a similar comment, however, she claims it was because the job is not for a lot of people and she tries to tell all her applicants that. In light of this and her testimony at hearing that she discusses with potential drivers the kind of behavior they can expect from the children, and the other less desirable working conditions which can be encountered, it is found that a comment such as is alleged by Petitioner could well have been made. In that regard, however, Petitioner admitted at hearing that the remark, instead of referring to "most" men, might have been "some" men. On this occasion, however, no judgement or other comment was made regarding Petitioner's proposed bus parking spot. After this second conversation with Ms. Barrow, Mr. Gibbs became suspicious of possible discrimination because of her comment about male temperament, but he had no real proof of that and did nothing. She again told him to call back in September, 1986, and when he did, he was met with the same response: they were not hiring but to call back in six months. When he did, he was again put off and told to call back at the end of the school year. This routine continued until he called in January, 1988, and spoke with Ms. Strickland, the route coordinator for another area, thinking chances of his success might be greater with another supervisor. When he identified himself and told her why he was calling, she told him that his September, 1985 application was no longer any good: employment applications were kept open only for 30 to 60 days, after which they are retired. Petitioner's application was kept on file, however, and was presented at the hearing in April, 1990. When, during discovery prior to hearing, Petitioner's counsel requested copies of all applications for driver positions from 1985 to the present, he was furnished with only those from 1989 to the present with the comment that all others were not available. Inquiry of administrative officials at the Board offices revealed such records were kept only one year before being retired and, apparently, no one could indicate where or under what conditions older documents were maintained. When Mr. Gibbs was told about his application by Ms. Strickland, feeling certain he was being discriminated against, he immediately filed his complaint of discrimination. Petitioner met, in his opinion, all the requirements to be a school bus driver. He lived in the area in which he proposed to drive; he was certified as a school bus driver; he passed all the tests given him; and, as he saw it, he had an appropriate place to park the bus. It is on this issue of an "appropriate" place to park that this matter turns. Ms. Barrow felt at the time of Petitioner's application, and believes to this day, that a child care center, with the frequency of ingress and egress traffic, and the presence of many young children, is not an appropriate place to manipulate and park a large bus. Even though she was initially mistaken as to the actual site in question, she had the correct site checked out by Mr. Saffold, her driver trainer and accident investigator, and checked it herself several times. Mr. Saffold, after numerous visits to the site, found it to be not appropriate for parking a bus due to the number of trees on the site and the other cars routinely parked there. In addition, there is a circular drive which gives little room for maneuvering. Ms. Strickland also went out to see Petitioner's site, and she, too, found it unacceptable for much the same reason cited by Mr. Saffold; the trees, the lack of maneuvering room, and the on- property traffic due to pick ups and drop offs. Ms. Barrow concluded that a day care center, with its heavy traffic of people coming and going, was not an appropriate place to park a 35 foot bus. She told Petitioner that he should find an "appropriate" parking place within a reasonable distance of his residence, such as at a church or other off-street facility. There is no central bus parking compound at Ms. Barrow's facility. There is, as Petitioner contends, ample space at the side of his facility to physically locate the bus when parked. That is not the basis for disapproval. The appropriateness of the site is, however, and the question of appropriateness is a subjective one with the decision on what qualifies and what does not left up to the route coordinator. Ms. Barrow, the coordinator for the area in which Petitioner applied, concluded the site proposed by Petitioner to park the bus was not appropriate. In this conclusion she was joined by another coordinator, Ms. Strickland, and a driver trainer and accident investigator, Mr. Saffold. In light of the evidence presented and the considerations pertaining, it cannot be said her conclusion was wrong. Within the Board's school bus operation, there are 12 route coordinators, none of whom are male, who supervise a total of in excess of 700 drivers. Within Ms. Barrow's area, she supervises 67 drivers, each of whom has between 2 and 4 daily runs. Each run is made up of 1, 2, or 3 schools. Drivers are hired, initially, as substitute drivers who fill in on an "as needed" basis for regular drivers. The substitute driver position is a part-time job which lasts for 10 instead of 12 months of the year. No set amount of working hours can be guaranteed. The average substitute driver works from 6.5 to 7.5 hours per day. Whereas regular drivers are guaranteed 6 hours work per day, substitute drivers get no guaranteed minimum and are paid only for the hours they actually drive. Substitute drivers may remain in that category for between 6 and 18 months. Regular drivers are hired from the ranks of substitute drivers. Driver criteria include a good driving record; completion of the 10th grade; and an "appropriate" place to park the bus. Board personnel consider the most critical of these to be the place to park the bus. It must be a safe, off- street location, and the problem of finding a suitable parking space is becoming more and more difficult. Of the 67 drivers under Ms. Barrow's supervision, 3 are male. During the 9 years she has served as a route coordinator, she has hired 3 or 4 male drivers. However, she gets very few male applicants and this is the basis for the low number of drivers. Ms. Strickland has 6 or 7 male drivers out of 68 full time and 11 substitute drivers. Of the applicants for drivers in her area, 3% to 4% are male. Mr. Saffold, who has worked for Ms. Barrow since March, 1981, has never found her to in any way discriminate against men. As a part of his job, he periodically goes out with the route coordinator to check on proposed parking sites for buses. On the 3 or 4 times he has done this, he has found the site to be inappropriate twice. Petitioner claims that the inappropriateness of his proposed parking site was not made an issue until after his complaint was filed. According to Mr. Saffold, it has been the continuing policy in Ms. Barrow's area to check the proposed parking site before giving the required tests to driver applicants. In the instant case, this was not done. Petitioner claims reimbursement for back pay. He filed his charge of discrimination on April 4, 1988. Any back pay due would then begin to accrue no earlier than April 3, 1986, two years prior to the filing of the charge. After being told there was no employment available for him at Respondent's Brandon bus barn, Petitioner took a job with the city bus line, Heartline, in January, 1986 and resigned in June, 1986. He earned $5.25 per hour during the entire time he was so employed. After leaving the city, he went to work at his wife's day care center where he earned $7.00 per hour and is still employed at $7.20 per hour. The job at Heartline, driving a city bus is clearly equivalent to that of driving a school bus. His duties at the day care center include periodic bus driving but is primarily of an administrative or maintenance nature and cannot reasonably be considered "substantially equivalent" to those of a school bus driver. Petitioner admits that after leaving Heartline, he did not inquire about or apply for other driving positions. Petitioner has requested attorney's fees and costs in the amounts of $22,500.00 and $1,471.85, respectively. Attorney LaPorte, testifying on behalf of Petitioner, indicated the Respondent's hourly fee of $150.00, when considered in light of his extensive experience and the considerable amount of research and preparation required herein, was not unreasonable. There was no evidence on the part of the Respondent to dispute Petitioner's claim and it is accepted as proven. The costs detailed in the exhibit attached to Respondent's post-hearing memorandum is also considered reasonable and is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition For Relief, alleging unlawful discrimination on the basis of sex, be dismissed. RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2016 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted two Proposed Recommended Orders - a long form and a short form. Both contain proposed findings of fact which are identical. The difference in Proposed Orders relates to the legal discussion which pertains to the proposed Findings of Fact. Proposed Findings 1 - 12 related primarily to procedural matters leading up to the final hearing. Finding of Fact 13 consists of several paragraphs which, for the purposes of this discussion, shall be re-numbered 13(a) through 13(m). 13(a). Rejected as not a proper Finding of Fact. The "concession" regarding liability appears to have been a part of proposed settlement negotiations and cannot be considered binding as to Findings of Fact after hearing which are based on evidence presented at the hearing. Attorney's fees are considered reasonable. 13(b). Accepted and incorporated herein. 13(c). Accepted and incorporated herein. 13(d). Accepted. 13(e). Accepted and incorporated herein. 13(f). Accepted and incorporated herein. 13 (g). Accepted and incorporated herein except for last sentence which is a restatement of evidence and not a Finding. 13 (h). Statistical information contained is accepted and incorporated herein. The balance, relating to the establishment of a prima facie case of discrimination is not a Finding of Fact, and is not supported by the evidence. 13(i) Rejected. 13(j). Accepted as to the facts but rejected as to Petitioner's conclusions as to the foundation for an adverse inference. 13(k). Accepted. 13(l). Accepted. 13(m). Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. & 11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein to establish that Ms. Barrow made some comment about "some" or "most" men not being emotionally suited for drive a school bus. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert H. Mackenzie, Esquire 17 McKendree Dr. Wesley Chapel, Florida 33544 Ronald W. Fraley Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 P.O. Box 639 Tampa, Florida 33601 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
