The Issue The issue for consideration in this hearing is whether Petitioner School Board should terminate Respondent's employment because of the alleged misconduct outlined in the letters of Termination dated April 2, 1996 and May 6, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, School Board of Sarasota County, (Board), operated a system of school busses to transport students to and from the public schools operated by and within the county. The Respondent, George James Bock, was employed by the Petitioner as a school bus driver and was assigned to drive bus number 9101. Sometime in January 1996, but prior to January 10, while in the process of picking up children at Englewood Elementary School for the purpose of transporting them to their homes at the end of the school day, Respondent had trouble getting his bus started when it was parked near the school and the children were aboard. He was, at the time, observed by Marcia Strickland, a pre-school teacher's aide, whose job it was to see the children onto the buses in the afternoon after school. Ms. Strickland saw Respondent get up out of his driver's seat, and she got onto the bus to see if he needed any help. She saw Respondent go to the back of the bus and do something she could not see and then return to his seat. When he thereafter tried to start the bus it started and he drove off. Respondent and Ms. Strickland did not have a conversation during this period which lasted about a minute, nor did she see him attempt to use his radio. On the morning of January 12, 1996, Respondent had the usual responsibility to pick up students attending Venice Middle School and transport them to school. When they had been delivered without incident, he had some time to spare before he was to pick up the elementary school children to be transported to their school, Englewood Elementary. In the interim between runs, it was his practice to drive the empty bus to the old K-Mart parking lot near Venice where he would park his bus in the company of other school bus drivers who were also between runs, and he did so on this particular day. The middle school run went off without difficulty, however, during the run a buzzer went off in the bus several times. This was not an unusual occasion as it frequently happens when the bus passes over a bump in the road at US highway 41 as he deadheads from the first to the second run. The weather was inclement on the day in question and appears to have been quite wet. Respondent did not leave his bus while it was in the parking lot nor did he speak with any of the other drivers. When it became time for Respondent to leave the K-Mart lot for his second run, he was unable to get the bus started. He attempted to do so for several minutes but the bus would not start. He checked all doors and exits of the bus to insure none of them were insecure but all was well. He also checked to insure the bus was in neutral and it was. Notwithstanding all he tried, Respondent was unable to get the bus started. Finally, he discovered a problem with a lock on the back door which he tried to fix unsuccessfully, and he attempted to call in to his dispatcher by radio to advise that because of his problem he would be late on his run, but his efforts to raise central or other drivers were also unsuccessful. Respondent ultimately got the bus started, but by that time he was late and only one child was still waiting for pick-up. He subsequently determined that some of the parents of the students who ordinarily rode on his bus made the pick-up and took the children to school when it appeared he would be late. Each bus driver is furnished with a pre-trip log book which he or she is required to fill out regarding each trip. The book for Respondent's bus on January 12, 1996, and for every school day in January 1996 prior to that date reflects every item marked OK for both the morning and afternoon runs, and no item is identified as having been a problem. The page is signed by the Respondent. Respondent indicates he didn't make any notations in the log book about the door buzzer going off because there were no problems at 6:45 AM when he filled out the log. The problem with the buzzer normally did not prevent him from starting the bus except for one time approximately two weeks previously. This must have been the incident referred to by Ms. Strickland. Though Respondent did not make any entries in the bus log regarding this problem he did fill out an incident report regarding it and a driver's repair request regarding the problem. The incident report bears the improper date of January 10, 1996, but this was explained by Respondent as being merely his error when he filled out the report on January 12. This explanation is accepted. The bus was checked out by Wendell Prior, a lead mechanic with the School Board's Taylor Ranch compound from which Respondent operates. Mr. Prior also conducts monthly safety inspections of the busses assigned to his shop and corrects problems reported to him. He is certified as an ASE certified mechanic and has attended several schools to keep his skills current. Mr. Prior, along with an assistant mechanic, thoroughly checked out the Respondent's report regarding the buzzer on bus 9101 which reportedly caused the bus not to start. He also checked the radio which Respondent had reported as faulty. Neither Prior or the other mechanic was able to duplicate Respondent's problem or find any defect which would prevent the bus from starting. They saw no foreign material and found no evidence of attempted repairs. Mr. Prior also checked out the bus' battery system and found it to be working properly. As a result of all his efforts to find something wrong or recreate the problem allegedly experienced by Respondent, Mr. Prior could find no defects and he has made no repairs to the bus buzzer system since that time. Prior also tried out the radio, which is one of the more powerful bus radios used in the system, and though he was unable to reach central dispatch, he was able to reach other busses clearly. He could find no problem with the radio. Though it may seem improbable, there is no major inconsistency between the testimony of Mr. Bock and that of Mr. Prior. Other bus drivers testifying for the Respondent indicated that the area where the buses congregate during the hiatus between runs is a difficult area for radio reception. These drivers have been able to reach other busses in the area but not the central dispatch radio from that site. In addition, Mr. Wass, formerly a school bus driver and an individual with extensive experience in engineering and automotive electrical systems, has also experienced problems with the back door of the school bus he drove which prevented the bus from starting. He determined that the back door cut-off latch frequently moves while the bus is in motion, and when the bus is subsequently turned off, it cannot be restarted with the latch in that position. He has also experienced intermittent circuitry problems with his bus which was aggravated by wet weather. Taken together, the evidence indicates with regard to this allegation that in fact Respondent was late for the second run to Englewood Elementary School because of mechanical or electrical problems with his bus which were intermittent and beyond his control. His failure to contact central dispatch so that alternative arrangements could be made to transport his students was occasioned by his failure to raise central by radio due to a blind spot for transmission at the location where he was parked and unable to start the bus. To be sure, he probably could have relayed a notification to central through another bus driver, which ability to do so was indicated by the other drivers. However, Respondent claims he tried and was unable even to reach another driver. Respondent was charged with a failure to make the run on time, not a failure to call in to central. Petitioner's allegations that interim stops at the shopping center were not authorized is irrelevant to the issue herein. In any case, the evidence tends to indicate that such practice was wide-spread among the drivers and was accepted by the system managers. As a result of the Respondent's failure to pick up the elementary school children on time on January 12, 1996, on January 15, 1996, the parent of one of the children on the run in issue wrote a letter to Mr. Girard, the supervisor of all official transportation for the school system, complaining of the Respondent's failure to make the pick up on time. This mother, who provided transport for several of the stranded children that morning, claimed to have found the bus parked in the K-Mart parking lot, and when she sounded her horn, Respondent rose up from one of the middle seats on the bus and went to the driver's seat. The following day, the principal at Englewood Elementary School wrote to Mr. Girard complaining of the failed pick-up on January 12, and raised the question of whether Respondent had been sleeping, citing other instances of Respondent's inappropriate performance of his duties, none of which are relevant to the issues herein. Because of these complaints, on March 18, 1996, Mr. Girard forwarded a memorandum to Gerald Padfield, the Board's Supervisor of Personnel, informing him that a decision had been reached to proceed with disciplinary action consistent with the terms of the union contract. In his letter, Mr. Girard cites several prior actions taken with regard to the Respondent and which includes two previous letters of instruction, a verbal and a written reprimand, and a three-day suspension. Respondent contends that the two letters of instruction were not disciplinary action, but were imposed to correct improper performance on his part. The three day suspension was brought to arbitration upon Respondent's filing of a grievance. While grounds for discipline were found to exist, the three-day suspension was reduced to a one day suspension. It should also be noted that Mr. Girard's letter contains several inaccuracies as to dates of incidents and/or corrective action. For the most part, however, the document demonstrates that the Board has followed a course of progressive discipline in its dealings with the Respondent. Respondent's Exhibit C is a document which outlines in detail the disciplinary history of the Respondent and which includes the formal actions previously cited. In addition, however, there is evidence of other incidents involving Respondent concerning which incidents complaints were received by the Board and for which non-disciplinary action was taken by administration personnel. These instances of uncharged activity by the Respondent have no bearing on the instant determination of whether Respondent committed the offenses alleged in the cases in issue but were admitted solely for the purpose of establishing that the Board had followed a policy of progressive discipline in its dealings with the Respondent. Mr. Bock is a member of the classified bargaining unit represented by the local teacher's union which has entered into a collective bargaining agreement with the Board. Article XXII of that agreement provides for the use of progressive discipline except in emergency or flagrant violation situations. Pertinent hereto is the agreement definition of progressive discipline which calls for termination as the next step after suspension with or without pay. On March 5, 1996, Marge Sams, a safety facilitator with the Board's transportation department, located at the Taylor Ranch bus compound, while in a conversation with another bus driver, observed Respondent smoking a cigarette while he was standing in front of a school bus which was parked by a fuel pump. She could tell Respondent was smoking by the movement of his hand to his mouth and a puff of white which appeared immediately thereafter. She started out the door to tell him not to smoke there when he threw the cigarette to the ground and crushed it out with his foot. He came toward her, and when she started to ask him not to smoke near the fuel pumps, he barely acknowledged her and passed by her out the other door to where he met two other people. A permitted smoking area is located just outside the bus office building at which a picnic table and benches are located. A butt can is located on the table for the use of smokers. While this smoking area is in the general vicinity of the fueling pumps, it is not located adjacent to the pumps and does not create a safety hazard as would smoking at the pumps. Located at the pump service island where Respondent was seen smoking is a reasonably large, easily readable blue and white sign which clearly indicates that no smoking is permitted at the pump during fueling operations, by order of the state fire marshal. These signs were in place on March 5, 1996. The pump just below and to the side of the aforementioned sign bears the indication that it contains diesel fuel. It should also be noted, however, that next to the building, just outside the office, at some point in time, was located an open flame space heater. Ms. Sams' observation of the Respondent on March 5, 1996 was, by her own admission, very brief and she was not paying close attention to him. It was the puff of white smoke which caught her attention and caused her to go outside right away. Ms. Sams does not know what Respondent was doing at the pump at the time. His job during that period was to wash busses and he might have been doing that. However, she is very sure that at the time she observed the respondent smoking at the pump island, there were other busses fueling there. In her capacity of safety facilitator at the Taylor Ranch compound Ms. Sams is responsible for setting policy, and though she is not sure, she believes the policy against smoking is written down. It is a matter of judgement and compliance with the general orders of the state fire marshal. Though she was unwilling to define what is a safe distance from a pump to smoke, in this case she observed the respondent smoking in an area immediately contiguous to where two other busses were being fueled, well within 15 to 20 feet of them, and she is satisfied that is not safe. Mr. Bock does not deny smoking at the time and place alleged in the charging letter, but does deny ever smoking during fueling operations. Based on her observation of Respondent on March 5, 1996, Ms. Sams drafted a written memorandum to Mr. Girard, the Board's bus business manager, reporting what she had observed. While she admits that memorandum does not reflect fuel was being dispensed at the time and agrees such a comment should have been included, she is sure fuel was being dispensed. It is so found. It is also found that many drivers and compound personnel smoke at the picnic table outside the bus office, even while fuel is being dispensed at the pump and neither Respondent nor Mr. Prior has ever heard anyone say anything about that. When Mr. Girard received the report of Respondent's late pick-up on January 12, 1996, he immediately caused the allegation to be looked into. Based on the report that Respondent had had bus trouble, Mr. Girard, the same day as the incident, also had that looked into, and when nothing wrong could be found with the bus, he released it for the afternoon run. According to Mr. Girard, when a bus driver has problems with his run, he is supposed to radio in or call by phone to bus central so that children are not left standing at a bus stop. He admits that from time to time communications problems exist in that certain areas of the county are dead areas for radio transmissions. In addition, some of the buses have smaller radios than others and do not have adequate power to reach central from all areas serviced. Respondent's bus, however, had one of the bigger radios which should have been able to reach central. Other evidence of record, however, has confirmed the existence of dead areas, and, conceivably, Respondent was in such an area when he was unable to get the bus started. However, he could have called another bus and requested his message be relayed, or he could have used a phone line to call in. He did neither even though the Board's policy on calling in was discussed with Respondent prior to January 12, 1996 and at the time he was advised he should lay over on school board property. This information is contained in a written memorandum dated May 3, 1993 from the Board's director of transportation to all bus drivers. However, neither the failure to call in nor the layover at an unauthorized location was charged. As a result of the smoking incident, when added to Respondent's prior record, on January 30, 1996, Mr. Girard advised Respondent in writing that a meeting was scheduled to discuss this matter on January 31, 1996. However, the meeting was rescheduled for February 7, 1996 at Respondent's request. When the meeting was held, Girard and Respondent discussed what disciplinary action would be taken consistent with the progressive discipline policy called for in the collective bargaining agreement. The Respondent's disciplinary file with the Board reflects a Memorandum of Instruction administered on January 22, 1991 and a Letter of Instructions issued on December 12, 1991. These documents clearly indicate on their face that they are not disciplinary, however. Nonetheless, Respondent was also administered a verbal reprimand on February 3, 1992, followed by a written reprimand administered on April 7, 1992. In addition, Respondent was administered a three day suspension in the latter part of 1995 for smoking on his bus. Respondent grieved this action and the matter went to arbitration where the arbitrator's Decision and Award dated August 27, 1996 upheld the imposition of a suspension but reduced the term from three days to one day. Because of the Respondent's disciplinary record, Mr. Girard recommended termination of Respondent's employment to the superintendent who accepted that recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Sarasota County reject the recommendation of the Superintendent regarding the alleged incident on January 12, 1996 and dismiss the charge, but accept the Superintendent's recommendation regarding the allegation of inappropriate smoking and enter an order terminating the employment of George James Bock with the Board. DONE and ENTERED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore Post Office Box 49377 Sarasota, Florida 34230 Charles L. Scalise, Esquire West Russell Snyder, P.A. 355 West Venice Avenue Venice, Florida 34285 Thomas H. Gaul, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3331 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Educatin The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Euretha L. Davies, is a white female, who was first employed by Respondent, Laidlaw Educational Services (Laidlaw), in 1997 as a school bus driver. Respondent is an employer within the meaning of the Florida Civil Rights Act. Respondent provides pursuant to contract school bus transportation in Santa Rosa County School District. This includes all aspects of transportation: training drivers, maintaining vehicles, preparing routes and administering the system, and preparing reports to state and federal authorities. Petitioner had been an employee of the Santa Rosa County School District for nine years prior to Laidlaw contracting to provide these services in 1997. She transferred her employment to Laidlaw at that time, maintaining her senority and pay rate. On January 4, 2000, Petitioner contacted Jeffrey R. Capozzi, Driver Development and Safety Supervisor for Laidlaw at their office in Milton, Florida, about pain she was experiencing in both her wrists. She was sent to Immediate Care at West Florida Medical Center, Pensacola, Florida. There, she was seen by Kenneth Hill, M.D., an orthopedic specialist. Dr. Hill performed surgery to release the carpal tunnel in the right wrist on May 23, 2000. On August 24, 2000, a follow-up evaluation of the right had revealed that soft support of the wrist was needed, but Petitioner had reached maximum medical improvement with a one percent partial impairment. Petitioner was released to full duties. On May 2001, an annual check up was done in order to maintain Petitioner's entitlement to future workman's compensation medical treatment. This examination was performed by James St. Louis, M.D., who took over Petitioner's case when Dr. Hill moved. Dr. St. Louis ordered nerve conduction studies of the right upper extremity, which was performed on July 30, 2001, by Dr. Gerhard. Dr. Gerhard found that the transmittal of nerve impulses was normal in the right upper extremity and left median nerve. On May 2, 2002, approximately a year later and after Petitioner had had a nerve conduction study, she was sent to see Michael L. Shawbitz, M.D., a neurological specialist. Dr. Shawbitz concluded that she had tendonitis in her right wrist and recommended physical therapy. On May 15, 2002, Petitioner was given a Dexterity Test for School Bus Drivers by Lillian Barnes, which Petitioner passed. On June 5, 2002, Dr. T. F. Brown gave Petitioner a physical, which she passed. On August 6, 2002, Petitioner returned to work when school started, driving a school bus with an automatic door opener. On September 4-6, 2002, Petitioner began training to become a driver trainer. Her instructor was Zeke Zeigler, a training director for Laidlaw. From September 9 through 13, 2002, Petitioner attended classroom training presented by Stephanie Slaton, who was in charge of Driver Safety and Development at the Laidlaw office in Milton, Florida. At this time, Petitioner was driving her bus seven hours and 35 minutes each day on a regular schedule. On September 16 through 20, 2002, Petitioner completed the classroom training and was scheduled to go on the road training with the trainer who fit into her schedule. At this time, Dianne Hall, Head of Routing and Data Entry, requested that Petitioner be taken off her driving schedule to assist in preparation of the report prepared by Laidlaw for the State of Florida on bus schedules and routes for the children in the district. Petitioner was taken off her bus to assist with this report, and when it was completed, she was to continue coming into the office between the morning and afternoon bus routes to keep information in the data system updated and correct. This data entry amounted to several hours of light typing daily. On October 15, 2002, Petitioner was informed that she had an appointment to see Dr. Minoo Hollis, for Petitioner's annual checkup on her workman's compensation injury. This examination was conducted on October 17, 2002. Dr. Hollis determined that Petitioner had tenosynovitis of the right flexor, a ganglion cyst of the left wrist volar ganglion, and diffused chronic pain of the left forearm and wrist. Dr. Hollis prescribed medication and physical therapy for Petitioner and put her on light duty not driving a school bus. On October 23, 2002, Petitioner started physical therapy at Santa Rosa Medical Center three times per week for three weeks. Petitioner continued to work at the school office and to make entries into the computer system. Petitioner was assigned to the school office where she worked on various projects. She did light typing, copied documents for the school staff, and handled mail. There is a conflict in testimony regarding whether these assignments were in pursuit of assisting with the data entry or were the result of light duty because of Dr. Hollis' findings. It is found that at the point Petitioner ceased driving the bus, it was the result of the light duty assignment. These light duties continued until December 10, 2002, when Petitioner was assigned to Pace High School (PHS) where the assistant principal, Bradley Marcilliat, was delegated authority to assign her duties. Upon her assignment to PHS, Petitioner's hours per week were reduced to 30, and her typing was restricted further by her supervisors at Laidlaw. On December 12, 2002, Dr. Hollis did a follow-up examination of Petitioner after physical therapy and found that she had a two percent permanent partial impairment and prescribed the following restrictions as they relate to her bus driving duties: Can sit, stand, and walk without interruption for eight hours; Reach above shoulder level frequently Can use hands for repetitive actions such as: Simple grasping-both hands Pushing and pulling-right hand no; left hand yes Restrictions of activities involving: Unprotected heights-none Moving machinery-none Changes in temperature and humidity-none Driving automotive equipment-none Restrictions to automatic transmission-yes Fumes and gas-none On December 12, 2002, Jennifer Jack, MSN, RN, who was the case manager employed by Genex Services, Inc., for Crawford and Company, Respondent's workman's compensation insurer, reported to Stephanie Slaton that Petitioner could drive a vehicle with automatic transmission per Dr. Hollis. Ms. Jack opined, "I am not sure if driving the bus requires any repetitive pulling, but if it does not, then it looks like Ms. Davies can drive a school bus." A question existed about whether Petitioner could operate the automatic door opener on the school bus, which required the driver to pull a knob with the right hand. Ms. Jack queried Dr. Hollis, and was told Petitioner could drive a bus with an automatic door opener. On December 24, 2002, Crawford and Company informed Petitioner that she would be paid one percent as the difference between the one percent she had initially been paid, and her current permanent impairment of the body as a whole. Petitioner continued her duties at PHS until January 31, 2003. Nothing was said about her returning to her normal bus driving duties, although she had been released by her doctor to return to work with the limitations stated above. On January 31, 2003, Petitioner was advised by personnel at PHS to report to Bobbie Williams' office at Laidlaw at 10:30 that morning. When she reported to Williams, he gave her a dismissal letter, and stated that Laidlaw had been informed by the insurance company that she had reached maximum medical improvement with regard to her injury that had occurred on January 4, 2000, and that with her current restrictions she was no longer able to perform essential requirement necessary to drive a school bus. This determination was based upon the Laidlaw's determination that Petitioner could not operate the automatic door opener on the school bus. This conclusion is contrary to the evidence presented by Petitioner that she had operated the door without problem before she developed the tendonitis, and contrary to Dr. Hollis' reports and the information provided to Ms. Jack by the doctor. Although the record shows that Petitioner continued to improve as revealed in her May 2003 examination, the fact that the doctor indicated that Petitioner had a permanent impairment of two percent in December 2002 indicates that Petitioner had reached maximum medical improvement as of that date. The facts reveal that Petitioner was ready to return to work; was discharged by Respondent because of an alleged inability to open the door of the bus; that Petitioner was able to open the door of a bus equipped with an automatic door opener; and that the "inability to perform the duties of the job" asserted by Respondent were not supported by the medical restrictions communicated to Respondent's agent, who made that information known to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter its final order directing that Respondent desist from discriminatory employment practices and directing Respondent to re-employ with appropriate accommodation Petitioner, promote her to a trainer-driver, and cease any further discriminatory practices. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Euretha Davies 3404 Oaktree Lane Pace, Florida 32571 Danny K. Guerdon Laidlaw Education Services 975 Cobb Place Boulevard, Suite 218 Kennesaw, Georgia 30144 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
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 The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue Whether Respondent, a non-instructional employee of Petitioner, should be dismissed on charges that he made unwelcome and offensive sexual advances toward several female employees over whom he had authority.
Findings Of Fact Respondent, Dan Quinn, has been employed by the School Board for 16 years. From July 1981 until November 1985 (when he was charged with misconduct and suspended from duty), he was employed as a driver trainer. In that position he not only trained school bus drivers, but assigned them school field trips for which they received extra pay. His other job duties included assisting the Supervisor of Transportation in coordinating bus routes and communicating with bus drivers assisting bus drivers with disciplinary problems on buses and riding buses when necessary: assisting mechanics in maintaining service and gas records in gassing buses, obtaining parts, and taking buses to inspection stations: serving as a substitute bus driver when necessary: and "other duties as assigned by the Supervisor of Transportation." (Resp. Exh. 5) The job of bus driver trainer is a non-instructional position. Respondent did not have a written employment contract with the School Board. II. The School Board has adopted Rules 4.3.2 and 4.3.3, internal rules not published in the Florida Administrative Code; which provide grounds and procedures for suspending and dismissing non-instructional school employees: Suspension Procedure The Superintendent has the authority to suspend non-instructional school employees for emergency reasons, and shall notify the Board immediately of such suspension. The suspension shall be reviewed by the Board at its regular or special meeting, at which time the employee shall be restored to duty or the Superintendent shall be authorized to serve noticed on the employee of charges against him and the date and place of hearing before the Board; at which all parties shall be heard on all matters relevant to the suspension and the employee's continued employment. Upon conclusion of the hearing; the Board shall restore the employee to duty, dismiss the employee; or otherwise adopt the recommendations of the Superintendent. For the purpose of this rule the term "emergency" includes, but is not necessarily limited to; any situation arising from the conduct of any Board employee for which the Board may find cause to dismiss the employee, such as immorality, intoxication while on duty, gross insubordination; willful neglect of duty, assaults upon other persons, incompetency, unjustified interruption of the orderly conduct of a school or any school activity, conviction of any crime involving moral turpitude or other misconduct. * * * Dismissal of Employees Dismissal of non-instructional personnel from employment by the Board shall be as follows: * * * If the quality of the employee's work is unsatisfactory and unacceptable, the Superintendent may recommend dismissal of the employee. (Petitioner's Exh.2) III. J.F. has been a bus driver employed by the School Board since 1970. At approximately 6:15 a.m. on one morning in January or February 1983, while she was sweeping her school bus before leaving on her route, Respondent entered the bus and passed her in the aisle. After she was seated in the driver's seat, he approached her and, while standing to her right (in the bus aisle), put his left arm behind her neck and around her left shoulder and placed his hand on the side of her breast. He then tried to kiss her on the right cheek. She told him to "knock it off," and "get off the bus." He complied but, while stepping off the bus, told her that, "If you're not good to me, I don't have to give you all these field trips," referring to the lucrative field trips which he assigned to bus drivers. She was embarrassed and offended, but did not report the incident for fear that she would lose her job. (At that time, she did not know whether Respondent had made similar advances toward other bus drivers: she also believed Respondent to be a good friend of Charlie Horn, the Supervisor to whom she would address her complaint.) (Tr.9) There is no evidence that Respondent ever again made a sexual advance toward J.F. or touched her in an offensive manner. Nor did he carry out his threat to deny her field trips. In school years 1982-83, he assigned her six field trips; in 1983-84, seven. IV. Another incident involving Respondent occurred in 1979 or 1980--five or six years before it was used as grounds to suspend and dismiss him. In the bus garage--at approximately 2:00 p.m. on a school day--Respondent approached M.S., another female bus driver, and asked her what time she would return from her route. She told him and he replied, "well, I'm going to have the air turned on upstairs in the meeting room so you and I can go up there and have some fun," or words to that effect. (Tr.34, 41, 52) She interpreted this as a request for "some kind of sex," and was offended. (Tr.39) She told him that there would be "no way" she would go up there with him. (Tr.41) He laughed and walked away. V. The next incident involving Respondent occurred on a school day in November 1983--two years prior to its being used as a basis for suspending and dismissing him. A.H., another female bus driver, was in the bus barn in Kissimmee. She had recently been hired. As the other drivers left for a field trip to the Tupperware Auditorium, about 8:45-9:45 a.m., Respondent approached and asked her to go upstairs to a classroom with him so he could show her something. She complied and accompanied him to the classroom. Once inside he turned off the lights, shut the door, reached for her and tried to hug her. She switched the lights back on; he turned them off again. She protested that she didn't want to do this; and she didn't "play games like this." (Tr.63) He put his hand on her breast; she tried to push him away. He then tried to slip his hand inside her pants. She switched the lights back on; he switched them off. He then agreed to go downstairs, saying, "Don't be mad now, I was only kidding; only fooling around." (Tr.64) Although his actions were unwelcomed and offended her, she agreed to forget it. Later, he asked her if she was mad; although she was still angry; she said, "No." (Tr.64) She did not report the incident because she was a new employee and feared losing her job or being labeled as a troublemaker. Almost two years later, A.H. had another unpleasant encounter with Respondent. After inviting her to his office and resolving a problem she had with a newly assigned route, he said, "See what I did for you." (Tr.65) He then began hugging her and tried to kiss her. She pushed him away, and tried to go out the door. He held her by the arm; pushed her back against the closed door and began rubbing up against her. He then left, telling her not to be mad, he was just kidding. These advances, also, were unwelcomed and offended her. VI. Another incident occurred in October 1984. Respondent approached M.S., another female bus driver. She was standing in the hallway, he put his arm around her and "took a hold" of her right breast. (Tr.96) She considered this an unwelcomed sexual advance and was offended by it. Later in that school year, Respondent told her that he controlled the assignment of field trips and could "throw a lot of money [her] way." (Tr.97) She replied that she had a second job and did not need field trips. She reasonably interpreted his comment as an implied suggestion that if she submitted to his advances; she would receive employment benefits. VII. J.B. was another female bus driver employed by the School Board. At approximately 6:15 or 6:30 a.m., during a school day toward the end of 1983, she was sitting in the driver's seat on her bus; checking it out before leaving on her route. It was still dark. Respondent entered the bus and placed his hand on her thigh, with his fingers "going down between" her thighs. (Tr.119) She brushed his hand away. She did not report this incident because she thought she would not be believed. VIII. Respondent flatly denies that these incidents ever took place. His denial is rejected as unpersuasive. The testimony of the women who received his unwelcome advances is, however, accepted as credible and worthy of belief. These witnesses had no discernible bias or motive to falsify. They were candid and factual, though it was obviously difficult and embarrassing for them to testify. IX. Except for the complaint of incidents, there is no evidence that Respondent, over the last 16 years, has been other than a responsible and satisfactory employee for the School Board. He never received a bad evaluation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be suspended (without pay) from his employment for one year, commencing in November 1985, and that any reinstatement be conditional upon the availability of a comparable position for which he is qualified. He should not, however; be returned to his former position; and That; within 10 days of entry of a final order, Respondent pay the School Board the sum of $200.00 as attorneys' fees which it incurred in obtaining an order compelling discovery; dated April 15, 1986. D0NE and ORDERED this 29th day of August, 1986, in Tallahassee; Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.
The Issue The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.
Findings Of Fact On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after 4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez. When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus, and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated. Nor should the use of profanity and the lack of respect by the students be tolerated. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus. Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West Bay. When she stopped at 20th Street, she advised dispatch that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity. Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students. Section 9.02 of Handbook provides: 9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides: 10.5.2 Handling Serious Problems Tips on handling serious problems: Follow your school's procedures for discipline or refusal of rights to ride the bus Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway. Secure the bus. Take the ignition key with you if you leave your seat. Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business. If a change of seating is needed, request that the student move to a seat near you. Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.
