The Issue Does Petitioner, Seminole County School Board (Board), have just cause to terminate the employment of Respondent, Danny Jenkins, for being absent without leave and for failing to follow proper procedures for reporting absences?
Findings Of Fact The Board operates the public schools in Seminole County, Florida. It is responsible for hiring, terminating, and overseeing all employees of the school district. The Board has employed Mr. Jenkins as a bus driver in the transportation services division of the school district since 2006. Their employment relationship is subject to the collective bargaining provisions between the bus drivers' union, Seminole County School Bus Drivers' Association, Inc., and the Board, as reflected in the Collective Bargaining Agreement (Agreement), dated July 1, 2013, through June 30, 2016, and the Board's Transportation Services School Bus Operations Handbook (Handbook), dated July 2014. Mr. Jenkins had regular employment status as established by Article IX, Section 3 of the Agreement. Article XXII, Section 14 of the Agreement requires each bus driver to call in to report an absence in advance of the driver's regular starting time. The "Absentee Procedures" on page 50 of the Handbook require the same procedures. An employee is considered absent without leave (AWOL) for each day the employee is absent from work without reporting the absence using the process agreed to in the Agreement and established by the Handbook. Each day that an employee is AWOL is a separate offense for disciplinary purposes. The Agreement provides for a "progressive step process" of discipline for AWOL employees. The first offense is a reprimand with a one-day suspension. The second is a five-day suspension. The third is a recommendation for termination. The Handbook provisions for AWOL employees are similar to those of the Agreement. Employees who fail to notify dispatch within an hour past their report time are considered AWOL. The first AWOL incident results in a one-day suspension without pay. The second offense causes a five-day suspension. The third offense is cause for termination. Regular employment class employees may be suspended without pay or discharged for reasons including, but not limited to: violation of Board policy; violation of work rules; insubordination; improper use of sick leave; failure to perform assigned duties; and other infractions as set forth by the superintendent. Just cause is required. On August 11, 2014, the first day of the 2014-2015 school year, Mr. Jenkins did not show up for work. He did notify dispatch that he was not coming in. The Board took no disciplinary action for Mr. Jenkins' absence that day. On August 12, 2014, Mr. Jenkins did not report for work and did not call dispatch to report his absence from work. Ms. Murphy, assistant director of Transportation Services, sent Mr. Jenkins a letter notifying him that due to being AWOL on August 12, 2014, she recommended that he be suspended for one day pursuant to the Agreement. On Wednesday, August 13, 2014, Mr. Jenkins did not report for work. He did not call dispatch as the Handbook required. But he did call the School Board's front desk. The Board did not take disciplinary action for that absence. On Thursday, August 14, 2014, Mr. Jenkins did not report for work. He did not call dispatch or make any other form of contact with the Board concerning his failure to report for work on that day. On Friday, August 15, 2014, Mr. Jenkins did not report for work. He did not call dispatch. At 12:08 a.m. that day, he sent a fax addressed to Ms. Murphy saying that he would not be able to come into work. The fax also contained a narrative disputing previous recommendations for discipline, discussing alleged poisoning from fumes on the bus, and giving reasons why he had not taken a physical to obtain a current medical certification as required. On Monday, August 18, 2015, Mr. Jenkins did not report for work. He did not call dispatch or otherwise contact the Board about his failure to report for work. Mr. McKenzie sent Mr. Jenkins a letter on August 18, 2014, stating that Mr. Jenkins must contact him by Thursday, August 21, 2014, to discuss his employment status. Mr. McKenzie also called Mr. Jenkins' home and cell telephone number in order to "help him as best as I can to get him to come to work." Mr. Jenkins did not respond. On Tuesday, August 19, 2014, Mr. Jenkins did not report to work. He did not call dispatch. He sent Ms. Murphy a fax at 9:09 p.m., on August 18, 2014, stating that he would not be able to report for work on August 19, 2014. The fax also claimed the school was not acknowledging his telephone calls. Mr. McKenzie called Mr. Jenkins four times on August 19, 2014, to discuss his absence from work and other work-related issues. Mr. Jenkins did not report to work on Wednesday, August 20, 2015. He did not call dispatch or otherwise communicate with his supervisors about his failure to report for work. Mr. McKenzie called Mr. Jenkins four times on that day to discuss his absence from work. Mr. McKenzie also e-mailed Mr. Jenkins. On Thursday, August 21, 2015, Mr. Jenkins did not report to work. He did not call dispatch an hour before his scheduled runs. He called Mr. McKenzie via telephone later that afternoon after receiving Mr. McKenzie's August 18, 2014, letter. Mr. McKenzie offered to meet with Mr. Jenkins the following day. Mr. Jenkins said he would attend. On Friday, August 22, 2014, Mr. Jenkins met with Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves. The parties discussed, among other things, the fact that Mr. Jenkins was not in compliance with the physical, medical card, training, and related commercial driver license requirements necessary for him to operate a bus. Mr. Lewis also confirmed each of Mr. Jenkins' absences and AWOL status for the dates in August where he did not report for work and did not call dispatch. This is a party admission admissible under the hearsay exception created by section 90.803(18)(a), Florida Statutes. The vast majority of the Board's evidence was hearsay, not subject to a hearsay exception. But Mr. Jenkins' admission to Mr. Lewis, coupled with the fact that Mr. Jenkins' testimony at the hearing basically did not dispute the charges, so much as offer reasons why he could not come to work and reciting many of his concerns, including student verbal and physical abuse on the bus, bullying of his children, and poisoning of some sort related to his employment. To the extent that the testimony of Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins' testimony, the undersigned found Mr. Lewis and Mr. McKenzie more credible. The outcome of the meeting was that Mr. Jenkins was expected to report for work on Monday, August 25, 2014. Immediately after the meeting, Mr. Lewis met privately with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could either resign or come in the following Monday and do everything he needed to do to retain his employment. Mr. Jenkins did not report for work on August 25, 2014. He did not contact dispatch or otherwise communicate with his supervisors or the Board. Mr. Lewis called Mr. Jenkins on Monday after he failed to report for work and offered to pick him up and bring him to work. Mr. Jenkins declined that offer. After Mr. Jenkins did not report for work on August 25, 2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins notifying him of a second AWOL offense and Mr. Lewis's recommendation that Mr. Jenkins be terminated from employment. On Tuesday, August 26, 2014, Mr. Jenkins did not report for work. He did not contact dispatch or otherwise communicate with his supervisors or the Board. That same day, the superintendent sent Mr. Jenkins a letter noting that Mr. Jenkins had been AWOL on August 14, 20, 21, 25 and 26, 2014. The letter also noted that Mr. Jenkins failed to follow the required notice procedures for his absences on August 15, 18, and 19, 2014. The superintendent's letter notified Mr. Jenkins that he was recommending that the Board suspend Mr. Jenkins without pay at the September 9, 2014, Board meeting and that the superintendent would recommend Mr. Jenkins' termination at the October 14, 2014, board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Seminole County School Board, enter a final order finding that there is just cause to terminate Respondent, Danny Jenkins', employment and dismissing him from his position as a regular employee bus driver with the Seminole County School District. DONE AND ENTERED this 13th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of April, 2015.
The Issue Whether Respondent, Sarasota County Government (County), violated section 760.10, Florida Statutes (2017),1 by discriminating against Petitioner, Lavender Suarez, based on her race (African-American) and gender (female), 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2017 codifications of the Florida Statutes and Florida Administrative Code. when it terminated her employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner is an African-American female who started her employment as a Manager II/Fiscal Manager with the Sarasota County Area Transit (SCAT) on November 30, 2015. She remained in that position until she was asked to resign in lieu of termination on August 17, 2017. Respondent, the County, oversees SCAT. SCAT provides public transportation services within Sarasota County via a fixed route bus system. SCAT has approximately 247 employees including administrative staff, bus operators, maintenance workers, and managerial staff. Rocky Burke, a white male, was the Director of SCAT during Petitioner's employment.3 Petitioner reported directly to Mr. Burke. In addition, during the relevant time period, there were four other managers who reported to Mr. Burke: Paratransit Operations Manager Gary Speidel, Fixed Route Operations Manager Ricardo Ferris, Transit Planning Manager Chris DeAnnuntis, and Fleet Maintenance Manager Jon Russo. Except for Ms. Suarez, all the managers were white males. The County's Human Resources Procedures and Guidelines Manual (P&G) provides the following policies regarding performance issues: Chapter III: Compensation and Status * * * (c) Performance appraisals shall be conducted as follows: 3 Mr. Burke resigned on September 5, 2017, less than a month after Petitioner left the County. * * * 3. Performance Improvement Plan (PIP) A performance Improvement Plan appraisal may be conducted at any time at the discretion of the immediate supervisor. Moreover, when an employee's performance is observed as needing improvement, the supervisor should conduct a performance appraisal for the employee as soon as possible. * * * Chapter IV: Discipline 4.03 Corrective Counseling Whenever an employee's performance or conduct falls below an acceptable level, the supervisor should inform the employee promptly of the deficiency and provide counsel, instruction and assistance to the employee. Michele Green, who oversees employee relations for the County, testified that—with the exception of theft or something extremely serious warranting immediate termination—the County makes every effort to advise employees in advance of shortcomings so they have an opportunity to improve prior to termination. The County, she explained, trains supervisors to counsel and coach their employees to help them succeed. MS. SUAREZ' JOB HISTORY AND DUTIES As SCAT's Fiscal Manager, Ms. Suarez was responsible for providing fiscal and budgetary project management, including grants analysis and oversight of federal and state financial requirements for compliance. She also managed a staff of four direct reports including Mary Goldaraz, who served as a Procurement and Contracts Coordinator; and Barbara Garrett, who served as an Information Technology (IT) professional. The unrefuted testimony establishes Mr. Burke treated Ms. Suarez differently than he treated the four white male managers. For example, Mr. Burke would come around Petitioner's desk several times a day asking what she was doing and monitoring her whereabouts; he did not do that with the other managers. Mr. Burke also had regular one-on-one meetings with the white male managers but did not have regular meetings with Ms. Suarez. If Ms. Suarez tried to meet with him, he would brush her off and tell her everything was fine. Whereas Mr. Burke sought input from the white male managers, if Ms. Suarez made a suggestion or recommendation he would dismiss it or not respond. Ms. Suarez also noted Mr. Burke allowed one of the other managers, Mr. Speidel, to belittle and berate her. Ms. Suarez testified she was afraid to go to Mr. Burke because she felt he would always take Mr. Speidel's side over hers. Ms. Goldaraz regularly heard Mr. Speidel yelling at Ms. Suarez and experienced this behavior from him herself. She felt that although this was unprofessional behavior, Mr. Burke allowed it in the workplace because he was grooming Mr. Speidel for the position of Director. At one point, Petitioner had a vacant position she needed to fill in her staff. Ms. Suarez wanted to hire a candidate who had been unanimously recommended by a selection committee. Mr. Burke refused to hire that candidate without any explanation. The candidate was an African American female. In contrast, when filling another position, the selection committee's recommended candidate had a felony conviction and other issues that became apparent after a background check. Mr. Burke told Ms. Suarez to hire that candidate despite his history. That candidate was a white male. Ms. Suarez testified about another incident where she was in her office with the door closed with a black supervisor who worked at SCAT. When Mr. Burke found out, he questioned Ms. Suarez and asked her what they were discussing. To her knowledge, he had never done that with any of the male managers who met with employees in their offices behind closed doors. Ms. Goldaraz corroborated Petitioner's testimony regarding Mr. Burke's negative attitude toward Petitioner, and women in general. Ms. Goldaraz worked next to Ms. Suarez' office and regularly witnessed the interactions between Mr. Burke and Ms. Suarez. She testified that Mr. Burke treated Ms. Suarez differently than he did the male managers. He discounted her suggestions and implemented a "good ole boy system" where he met regularly with the male managers, but not with Ms. Suarez. After Ms. Suarez was forced to resign, Ms. Goldaraz took her position. Ms. Goldaraz testified Mr. Burke was dismissive with her as well. He would not give her credit for her ideas and suggestions, but would give the male managers credit. The County put on no evidence contradicting the version of events or description of Mr. Burke's behavior credibly presented by Ms. Suarez and Ms. Goldaraz. LIBERTY PASS PROGRAM AND AUDITS Ms. Suarez also had responsibilities related to the Liberty Pass Program (Liberty Pass), which distributed 30-day transit passes for riders at discounted rates. The Liberty passes were offered by SCAT to low-income and/or homeless riders who provided appropriate documentation. The documentation to assess eligibility for Liberty Pass could be submitted at either the SCAT Administrative Office or one of 19 third-party agencies approved to distribute Liberty passes. Liberty Pass had its challenges. In May 2015, before Petitioner began working for the County, the County's Board of County Commissioners (BCC), authorized SCAT to discontinue Liberty Pass. The Federal Transit Administration required SCAT to perform a Fare Equity Analysis and SCAT hired a consultant to assess the impact of changes in the program on certain minority and low income populations. In September 2016, the County issued an audit report on SCAT's administration of Liberty Pass. The scope of this audit was from October 2014 (before Ms. Suarez was hired at the County) to June 8, 2016. The audit found there were problems with riders obtaining duplicate Liberty passes and with the third-party agencies not obtaining the necessary information before enrolling riders for the program. Eventually, SCAT eliminated the third- party distributors, and thereafter a Liberty pass could only be obtained at the SCAT headquarters or the County Health Department. According to Petitioner's yearly evaluation for 2016, given in January 2017, Mr. Burke rated her as either "Successful" or "Exceeds Expectations" in all five relevant categories. Related to Liberty Pass, the evaluation listed as accomplishments: (1) successfully completing the Liberty Pass Audit, (2) obtaining approval from the BCC in September 2016 for a "Liberty Pass Increase," and (3) collaborating with the consultant to finalize the Liberty Pass Fare Equity Analysis. Mr. Burke did not give Ms. Suarez the possible rating of "Needs Improvement," nor did he provide her with any negative or constructive comments.4 In response to the issues raised in the Liberty Pass Audit, Ms. Suarez had instructed Ms. Garrett, the IT professional on her staff, to prepare a spreadsheet to track the issuance of the Liberty passes. It is unclear whether Ms. Garrett completed the spreadsheet, but at some point Mr. Burke transferred Ms. Garrett (along with her IT position) and the spreadsheet tracking project from Ms. Suarez' oversight to Mr. Speidel. This spreadsheet was never submitted to the auditor. After the initial Liberty Pass Audit, Ms. Suarez was meeting regularly with Deborah Martin, the auditor, regarding the Liberty Pass issues, and other SCAT audits related to Bus Operations Cash Handling and Bus Pass Inventory and Reviews. At no time did Ms. Martin or anyone complain to Petitioner that she was not providing adequate information or that she was not addressing the issues for which she was responsible. There was no 4 Ms. Suarez also did not receive the other possible ratings of "Outstanding" (the highest rating), or "Unsatisfactory" (the lowest rating). evidence Ms. Martin or anyone else complained about Ms. Suarez' work on the SCAT audits. On August 15, 2017, Mr. Burke asked Ms. Suarez if she would resign from the Fiscal Manager position and take a lesser position. Ms. Suarez was surprised, and asked Mr. Burke for something specific in writing regarding her performance. Mr. Burke refused to put anything in writing. When she asked if his request was related to the audits, Mr. Burke stated it was not. Rather, he told her that other departments had lost confidence in her and he had as well. Two days later, on August 17, 2017, Mr. Burke advised Petitioner that if she did not resign she would be terminated. Under duress, Ms. Suarez signed and submitted a resignation letter that day. At the time of her forced resignation, Ms. Suarez was actively working on issues related to the audits. Ms. Goldaraz took over as the Fiscal Manager and completed the work related to the audits. Ms. Goldaraz was able to complete all the outstanding work that needed to be done. She stated there were a few standard things that needed to be finished up and she was able to do them quickly. There was nothing "major" left on the audit. Ms. Goldaraz "met with the auditors … and kind of wrapped it up. It wasn't really a huge deal." At the hearing, the County relied on an untitled spreadsheet and a follow-up audit report as grounds for Petitioner's termination.5 The spreadsheet purportedly was a list of audits, with columns for "Opportunities for Improvement," "Management Responses," and "Updated Responses." The spreadsheet had some portions highlighted. There was no explanation by the County as to who prepared the spreadsheet, whether it was accurate, whether it was the most recent version, what its purpose was, or why it was 5 The copy of the spreadsheet admitted into evidence is illegible due to its miniscule type and font. relevant. The undersigned finds the spreadsheet wholly unreliably and not credible evidence. The County also relies on a follow-up audit report issued December 2017, months after Ms. Suarez and Mr. Burke left the County's employment. Although this follow-up audit has numerous outstanding issues that remained "open," there is no proof Petitioner was responsible for the open items. Robert Lewis was the interim director of SCAT from October 2017 to January 4, 2020, coming in after Mr. Burke and Ms. Suarez had left. He did not work with either of them. Although he was aware of the audit, Mr. Lewis had no personal knowledge of SCAT operations prior to October 17, 2017. Furthermore, he had no knowledge of what had been provided to the auditor by SCAT, or how the SCAT audits were conducted. Mr. Lewis could not testify which department was responsible for the open items in the follow-up audit report, and admitted he was not aware of which manager was assigned to which open item. Mr. Lewis was not aware of what items may have been left open by the white male managers. Given there was no explanation of the December 2017 follow-up audit report, the undersigned finds it unreliable and not credible evidence. Because she was regularly meeting with the auditor, Ms. Suarez had personal knowledge of some of the open items listed in the follow-up audit report, even though she was not familiar with the report itself. The follow-up audit listed four open items and two partially open items. She was responsible for two of the items. The first dealt with managing the fare money on a daily basis. She testified she implemented a policy addressing this issue as there was not an existing policy when she was hired. The second open item for which she was responsible related to cash variances. Ms. Suarez testified she had finalized the reports reconciling the daily deposits; prior to her coming to SCAT, they were not done daily. She could not testify as to why these items remained listed as open or what had happened after her departure when Ms. Goldaraz began working with the auditors. The remaining open and partially open items related to "vault access" and "monitoring." Ms. Suarez testified she was not responsible for the vault or the security system that monitors the lock boxes and vault. Rather, these were items that were the responsibility of the maintenance and the bus operations departments, which were overseen by Mr. Ferris and Mr. Russo. Even though these two managers had open items in the follow-up audit report, they were not terminated. Ms. Suarez testified she received no indication from Mr. Burke, the auditor, or anyone else that there were problems with her handling of these open items. Prior to August 15, 2017, Mr. Burke gave her no indication he was disappointed in her performance or that she needed to improve or change. Similarly, Ms. Goldaraz' unrefuted testimony was that Ms. Suarez was totally capable as the Fiscal Manager, worked hard, and was very dedicated. There was no evidence of actual or perceived deficiencies in Ms. Suarez' performance. MR. DEANNUNTIS AS A COMPARATOR Like Petitioner, Mr. DeAnnuntis held the position of Manager II and reported to Mr. Burke. Mr. DeAnnuntis was hired at SCAT a few months before Petitioner was hired, at a similar (albeit slightly higher) salary as Petitioner. Mr. DeAnnuntis also managed a staff of three positions. Although he did not have the identical duties of Petitioner, as the Manager of Transit Planning he had similar compliance duties as he was responsible for SCAT's planning budget and compliance with federal, regional, and local transportation planning requirements. On December 29, 2016, Mr. DeAnnuntis was provided a two-page document titled "Performance Review Comments" (comments) from Mr. Burke. These comments outlined specific areas in which Mr. DeAnnuntis was to improve and suggestions as to how to make these improvements. Mr. Burke suggested that he and Mr. DeAnnuntis have daily in-person meetings. Mr. Burke also provided a list of outside resources to help Mr. DeAnnuntis. Ms. Suarez never received any similar comments from Mr. Burke. The comments document was not labeled a "Performance Improvement Plan" (PIP), nor did it set out a time frame for him to accomplish certain goals. It did not indicate that Mr. DeAnnuntis would suffer any repercussions if he did not take the advice given by Mr. Burke. As such, the undersigned does not find this document was a PIP. Rather the comments were consistent with those required by the County as described by Ms. Green and codified in P&G section 4.03 requiring supervisors counsel and coach an employee if his or her performance falls below an acceptable level. Almost three months after receiving the comments, on March 23, 2017, Mr. DeAnnuntis resigned. Unlike Ms. Suarez' forced resignation, there was no evidence Mr. DeAnnuntis was asked to resign after he was provided the comments or that his eventual resignation was in lieu of termination. Furthermore, the unrebutted evidence established no one had ever discussed poor performance or any other issues with Petitioner prior to her forced resignation. POST-RESIGNATION At the time of her forced resignation in lieu of termination, Ms. Suarez was earning a salary of approximately $71,427 a year at the County. After she left the County, Ms. Suarez immediately started applying for positions on various computer sites. While she attempted to find a permanent position, she worked for a temporary agency earning $10,557. On February 25, 2018, Ms. Suarez began permanent employment with Community Health, Inc., at a starting salary of $64,500. Her loss of earnings during the period from her forced resignation until she found this position was approximately $35,713. Ms. Suarez mitigated her damages. Subtracting out the amount she earned while temping, her interim losses total $25,156. Ms. Suarez received an annual increase a year later on February 4, 2019, raising her salary to approximately $68,275. Her annual salary for 2017 with the Respondent would have been $71,427, a difference of $6,927.18 annually for the first year (2018) and $3,152.64 annually thereafter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order: Finding the Sarasota County Government discriminated against Lavender Suarez based on her gender; Awarding Petitioner $36,550 in back pay; and Awarding reasonable attorney's fees as part of the costs. DONE AND ENTERED this 15th day of July, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 July, 2020. COPIES FURNISHED: Dusty Firm Aker, Esquire Aker Law Firm, P.A. 240 South Pineapple Avenue, Suite 803 Sarasota, Florida 34236 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Maria D. Korn, Esquire Sarasota County Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on March 27, 2018.
Findings Of Fact On March 27, 2018, Petitioner filed a Charge of Discrimination with FCHR and alleged therein that Respondent committed an unlawful employment practice by discriminating against him on the basis of race, national origin, and age. Petitioner’s Charge of Discrimination states, in part, the following: During my time with LYNX, I satisfactorily performed the essential job duties of my position. Notwithstanding my performance, I was fired with only two weeks left on my training. I was subjected to discrimination based on my age, race and nationality as further described below. I believe I was fired because LYNX treated [me] disparately due to my Jamaican nationality and my age of 68 years. They manufactured classes of improper driving which could be disputed by all of the cameras that are on the training buses. They gave me only one week to improve my driving. Petitioner was born in 1949 and was 68 years old when he commenced his employment with Respondent. Petitioner was born and educated in Jamaica and lived in the country for a significant portion of his adult life. Respondent speaks with an unmistakable Caribbean accent. Petitioner’s ethnicity and race derive from the African diaspora, and for purposes of the instant proceeding his race is that of a Black person. On or about June 14, 2017, Respondent extended to Petitioner a conditional offer of employment to work as a full- time bus operator. The terms of Respondent’s conditional offer of employment to Petitioner provide, in part, as follows: All offers of employment are contingent upon the satisfactory completion of the following: acceptable criminal history background check and motor vehicle record, employment verification and Department of Transportation (DOT) physical examination (that is good for a minimum of one year) including a negative drug screen. All employees must complete a 120-day introductory period. Should the results be unsatisfactory, according to LYNX’ standards, your offer of conditional employment with LYNX will be reviewed and may be revoked. The job description for Petitioner’s position as a bus operator provides as follows: JOB SUMMARY: Bus Operators transport passengers by operating any type of motor coach on regularly scheduled links and chartered service, observing all state and municipal traffic laws, observing all safety rules and strictly adhering to time schedules. DUTIES: Performs DOT pre-trip inspections. Answers passenger questions courteously. Calls out stops. Issues slips for fare refunds. Issues and collects transfers. Observes all state and municipal traffic laws. Observes all safety rules. Strictly adheres to time schedules. Monitors fare and ticket collection. Verifies that appropriate passes are being used. Writes daily reports such as transfers collected, coach mileage, special fares and tickets collected, time cards for hours worked and completes memorandum cards. Completes trouble card for mechanical difficulties of bus assigned. Performs other duties of similar nature as may be required. Completes Bus Condition Reports. REQUIRED KNOWLEDGE, SKILLS AND ABILITIES: Skills in customer service. Ability to effectively communicate in English, both verbally and in writing. Ability to physically sit for extended periods of time. Ability to pass a drug screen. Must possess a valid Florida Commercial Driver License (CDL), Class A or B with a Passenger endorsement and airbrakes. Ability to communicate in English on the work site. Ability to maintain DOT physical for one year. MINIMUM EDUCATION AND EXPERIENCE: Must be at least 21 years of age. High School diploma or GED required. Clean driving record. Full-time: Ability to work days, nights, weekends, holidays, split shifts, split days off and any hours assigned. Part-time: Ability to work mornings, afternoons and/or weekends. Not allowed to work over 30 hours per week. This description in no way states or implies that these are the only duties to be performed by the employee occupying this position. Employees will be required to follow any other job-related instructions and to perform any other job-related duties requested by their supervisor. Petitioner, as a condition of employment, was required by Respondent to complete an employment application. Petitioner noted on his employment application that he worked as a “Driver Guide” for Holland Alaska Princess for the period March 17, 2016, through May 24, 2016. According to Petitioner, his primary duties with Holland Alaska Princess were driving “tourists to scenic and historical locations in Alaska, USA, Yukon and British Columbia in Canada and informing guests on the highlights and history of each location toured.” Other than his employment at Holland Alaska Princess, Petitioner did not list on his LYNX employment application other jobs or experiences which required that he possess a CDL, Class A or B, with a passenger and airbrakes endorsement. According to the “experience questionnaire” completed by Petitioner during his LYNX new employee orientation, Petitioner noted that he had possessed his “CDL with passenger endorsement” for 16 months, and over the “course of [his] CDL career” had only driven an “MCI coach bus” for three months. Although Petitioner met the minimum qualification of possessing a valid CDL with appropriate endorsements, he, nevertheless, had limited practical experience in the operation of buses such as those operated by Respondent. On or about August 23, 2017, Petitioner, after completing the employment related background check and related matters, was hired by Respondent as a full-time bus operator. As a condition of employment, Respondent required Petitioner to attend “LYNX Training University (LTU).” Wilfredo Acosta, for more than seven years, has worked as a training instructor at LTU where he conducts “new operator” training sessions. According to Mr. Acosta, LTU is not a driving school where employees are taught how to drive a bus, but is, instead, an assessment opportunity where LYNX evaluates its new employees to ensure that they have “basic knowledge” regarding the proper way to operate buses utilized by the company. On September 15, 2017, less than a month after being hired, Respondent terminated Petitioner’s employment with the company due to “unsatisfactory job performance.” Maria Colon, who works as Respondent’s manager of organizational development and training, outlined in a memorandum to Petitioner the company’s reasons for the employment decision. The memorandum provides as follows: On September 8, 2017, you met with the manager and trainer concerning your unsafe driving practices. Your daily student operator evaluation forms were reviewed with you and the following dates were discussed: 8/28 Right turns too short, jumped a curb and drifted to the right side not maintaining the bus centered. 8/29 Right turns too short, jumped a curb and drifted to the right. 8/31 Right turns too short and jumped curb. 9/7 Right turns too short not using pivot point. 9/8 Unsatisfactory report was given for not slowing down for school zone when yellow light was flashing. Continued to make right turns too short with contact to the curb. Continued to drift to the right and did not maintain proper hand position on steering wheel or use of mirrors. At that time you stated that you were a driver for a long time and you knew how to drive. I informed you that LYNX’ priority is safety and my job was to ensure only those students that demonstrate consistent, safe driving practices would graduate from the LYNX Bus Operator Training Program. You felt the trainers were targeting you and [you believed that] with time you can improve. We agreed to give you until Friday, September 15th to improve your driving. If no improvement was noticed you would be terminated from the program. On September 15, 2017, you once again met with the manager and trainer to review your progress: 9/13 Unsatisfactory report for improper securing of the bus. Unsatisfactory report for obstructing traffic at an intersection. Continued to make right turns too short and jumped the curb. 9/15 Continued to drift to the right side not maintaining the bus centered. Failed to properly signal when approaching railroad crossing. Since you have continued to have unsafe driving practices with no signs of improvement, I have decided to terminate you from the LYNX Bus Operator Training Program. During the evaluation period referenced above, Petitioner’s driving deficiencies were personally observed by LYNX employees Karamchand Lowhar, Charles Rapier, Wilfredo Acosta, and Margaret McCoy. Each employee credibly testified during the final hearing regarding Petitioner’s driving deficiencies, and their testimony is credited. Petitioner contends that he is a bus driver of considerable experience, and the driving deficiencies cited by LYNX employees are exaggerated, fabricated, or both. Petitioner asserts that each of his bus training sessions was video- recorded, and that the most credible evidence of his driving performance lies therein. There is no indication that when Petitioner met to discuss his driving deficiencies with Respondent on or about September 8, 2017, he specifically requested either then, or thereafter, that the video recordings of his driving performance be evaluated and preserved. The evidence establishes Respondent’s vehicle video recording system preserves video for 30 days, and after such period, the video recordings are overwritten with new footage. Petitioner’s testimony that he has extensive commercial driving experience is undercut by the employment application and experience questionnaire that he completed as part of the pre- employment process. Petitioner admits in both documents that he has very limited experience with operating a bus. Petitioner, however, in prosecuting the instant action, and in his pre- termination meeting with Ms. Colon on September 15, 2017, represented that he is a bus driver of considerable experience. These inconsistencies are damaging to Petitioner’s credibility. Petitioner’s credibility also suffers from his factually inaccurate statement regarding when his employment was terminated in relation to the end-point of his 120-day probationary period. Petitioner’s Charge of Discrimination states that he “was fired with only two weeks left on [his] training.” Petitioner attempts to bolster his claim of discrimination by inferring that for more than three months, he met, or even exceeded, Respondent’s performance expectations, and that Respondent’s discriminatory animus was only revealed when Respondent, without sufficient justification, terminated his employment as a bus operator. The evidence establishes, however, that Petitioner was hired on or about August 23, 2017, and his employment with LYNX ended approximately three weeks later because of his poor performance during bus operation training sessions. Petitioner’s suggestion that he was meeting, or even exceeding, Respondent’s performance expectations during his probationary period is not supported by the evidence. Other than Petitioner’s testimony, which is not credible, there is no proof, either circumstantial or direct, that Respondent’s asserted grounds for terminating Petitioner’s employment are merely a pretext for unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, LYNX Transportation, did not commit an unlawful employment practice as alleged by Petitioner, Leebert Lawrence, and denying Petitioner’s Charge of Discrimination. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of October, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Leebert Lawrence Apartment 211 7511 Solstice Circle Orlando, Florida 32821 (eServed) Cindy Ann Townsend, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Michael John Roper, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made are made to supplement and clarify the stipulations of fact set forth in the parties' January 11, 2002, Stipulation: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since October of 1992. She is currently under suspension pending the outcome of this disciplinary proceeding. Respondent was initially employed as a substitute bus driver. Since March of 1993, she has held a regular school bus driver position. At all times material to the instant case, Respondent was assigned to the School Board's Southwest Transportation Center (Center). Mary Murphy has been the director of the Center for the past seven years. Since August of 1999, Aned Lamboglia-Candales has been the Center's coordinator. As such, she "monitor[s] all attendance at the [C]enter" and assists Ms. Murphy in dealing with personnel problems at the Center. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus driver employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3., of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . Article IX, Section 4.A., of the AFSCME Contract addresses the subject of "newly-hired employees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Article IX, Section 13., of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1. of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2. of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4. of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME , Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . According to Article V, Section 18., of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27., of the contract, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], and [p]olic[ies]" and, if she does not, she may be disciplined.1 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board drivers and aides are governed by the following "[a]ttendance [p]olicy": Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave2 -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. Pre-2000-2001 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 1, 1999, Ms. Lamboglia-Candales held a Conference-for-the-Record with Respondent to discuss Respondent's "unauthorized absences since March of 1999." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record during this year and it was held to review your unauthorized absences since March of 1999 when the first conference was held. . . . During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . Since the conference in March of 1999 you have incurred approximately thirty (30) days of unauthorized leave without pay. This administrator also informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to the fact that you suffer from migraine headaches, high blood pressure as well as another medical condition that requires surgery to remove some growths. The medication that you take prevents you from driving since it makes you drowsy. You also stated that you do not always go to your physician's office for treatment. You provided this administrator with documentation of one of the medications you take as well as the names of the physicians that treat you. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were also instructed to provide this administrator with documentation regarding your condition or treatments. Also, whenever you have a medical appointment to provide documentation verifying those. ACTION TO BE TAKEN This administrator will continue to monitor your attendance. A supervisory referral to the district support office was not done on your behalf since Ms. Ramsby, AFSCME Representative stated on your behalf that it was not necessary. Also please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the collective bargaining agreement between the School Board and AFSCME that were referenced in the memorandum. On March 1, 1999, Respondent received a verbal warning from Ms. Lamboglia-Candales concerning Respondent's "unauthorized leave." That same day, Respondent was presented by Ms. Lamboglia-Candales with a written Transportation Operations Procedures Reminder reflecting that Respondent had received the aforementioned verbal warning and directing Respondent to review Article V, Section 27., and Article XI, Section 4.B., of the collective bargaining agreement between the School Board and AFSCME. On May 3, 2000, Ms. Lamboglia-Candales issued Respondent a written warning concerning Respondent's "unauthorized leave." When the written warning was presented to Respondent on May 23, 2000, she refused to sign it. On July 21, 2000, Ms. Lamboglia-Candales held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This Conference-For-The-Record was held to review your unauthorized absences since . . . August 30, 1999. It was originally scheduled for June 9, 2000 but since you were not available that day it was re- scheduled for this day. During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . You received a verbal warning on March 1, 2000 and a written warning on May 23, 2000. . . . Since August 30, 1999 you have incurred approximately thirty-five unauthorized days (35) of leave and twenty-five (25) authorized days. You have been absent from work a total of seventy (70) days in one school year which is approximately ten months or 181 work days for employees in your bargaining group. You stated that many of your unauthorized absences were due to the fact that you have medical problems (high blood pressure). You also stated that the medication you are taking is not keeping it under control but your physician was going to change it to see if it helped. You also mentioned that you were considering taking a temporary demotion to a bus aide position until you felt better. You presented documentation for some of the days you have been absent and this administrator reviewed it. She reminded you that all documentation regarding absences should be brought in as soon as the absence occurs and not months later. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . She also informed you that if you decided to take the voluntary demotion to bus attendant you could discuss this with her at a later date. ACTION TO BE TAKEN This administrator will do a supervisory referral to the district support agency at this time and will continue to monitor your attendance. Also you are informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. As promised, Ms. Lamboglia-Candales referred Respondent to the School Board's Employee Assistance Program on July 25, 2000, and advised Respondent of the referral on that same date. Approximately a week after the July 21, 2000, Conference-for-the-Record, Respondent told Ms. Lamboglia- Candales that her physician had changed her medication and that the new medication "was working" and her "blood pressure was fine." As a result, she told Ms. Lamboglia-Candales, she was not going to pursue the temporary demotion to bus aide that she had previously discussed with Ms. Lamboglia-Candales. The 2000-2001 School Year On February 1, 2001, Ms. Lamboglia-Candales, along with Charlie Horn, an administrative assistant at the Center, held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Mr. Horn subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference and what "action [would] be taken." Mr. Horn's memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record in the past twelve months during this year and it was held to review your unauthorized absences since July 21, 2000 when the other conference was held. . . . During this conference you were provided with a copy of your leave history and Ms. Candales reviewed it with you. Since the conference on July 21, 2000 you have incurred approximately fifteen (15) days of unauthorized leave without pay. Ms. Candales informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to dentist and court appointments. You provided Ms. Candales with documentation to review. . . . Ms. Candales reviewed it in your presence and determined that approximately 15 days of unauthorized leave could have been authorized had you presented the documentation at the time the absence occurred. ACTION TAKEN Ms. Candales reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were once again instructed to provide Ms. Candales with documentation regarding your appointments and/or absences. It is important that you present your documentation in a timely manner meaning as soon as the absence occurs and not months later. ACTION TO BE TAKEN Ms. Candales will continue to monitor your attendance. A supervisory referral to the district support agency will not be done at this time. Also, please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. On March 29, 2001, the Center's director, Ms. Murphy, held a Conference-for-the-Record with Respondent to discuss "her job performance as related to [her] attendance." Ms. Murphy subsequently prepared (on April 23, 2001) and furnished to Respondent (on May 3, 2001) a memorandum in which she summarized what had transpired at the conference. Ms. Murphy's memorandum read as follows: A Conference-For-The-Record was held in the office of the director of Southwest Regional Transportation Center on Thursday, March 29, 2001. The following were in attendance, Ms. Linda Hogans, Bus Driver, Ms. Joyce Moore, AFSCME, Ms. Carolyn Ransby, AFSCME, Ms. Dorothy Ferguson, Administrative Assistant, and Ms. Mary E. Murphy. The purpose of this conference was to review your job performance as related to your attendance. You were given a copy of your leave history, which was reviewed during the conference. Since the beginning of this school year, you have accumulated 27 unauthorized absences. The original total was 44 days and after reviewing the medical documentation you provided during the conference, the amount of days was changed to a total of 27 unauthorized days. Ms. Moore questioned the conference held by Mr. Horn and Ms. Candales when you presented documentation but Ms. Candales did not accept the documents. The days have been approved and the total days have changed again to 15 and a half unauthorized days without pay. You were asked why you had accumulated so many unauthorized days? Ms. Moore stated that at one time you were caring for a cousin who could not care for [her]self. This cousin later died. Also, you had [a] death in the family and you have been injured on the job, which plays a big part with your absences. You indicated that you have high blood pressure and you doctor tried several different medications to maintain control. You indicated that there are times when you do not feel well so you stay home. I asked if your doctor supplied you with notes? You indicated that the doctor would give you some notes but not all of the time. I explained that when you present documentation, those days would be authorized. Ms. Moore asked if you had previous conferences. I answered yes that Ms. Hogan[s] has had a couple of conferences. During one of the conferences held by Ms. Candales, you were advised to present documentation directly to her so your absences could be authorized. Ms. Candales held a conference with Ms. Hogan[s] on July 21, 2000. This conference was held during the summer months but the conference did not include unauthorized days accumulated during the summer. Ms. Ferguson stated that the conference was held in July because several attempts were made to have the conference in June and Ms. Candales was not able to conduct the conference due to the amount of days you were off. During the conference you were directed to: To come to work and be on time. If you need to be off, present documentation to Ms. Candales or myself. If either the Coordinator or Director is not available, give the documentation to the Administrative Assistant on duty. You signed a supervisory referral to the District Support Agency. You were told that the summary of this conference would be forwarded to Mr. Jerry Klein, Administrative Director and the Office of Professional Standards for review for possible disciplinary actions not excluding dismissal. Also you were informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Ms. Moore stated that going to District support is not all bad [in] that the district has many programs to help employees. It is not just for disciplinary problems. I mentioned that during the yearly in-service District Support is discussed and explained to the employees. Ms. Moore stated that in the in-service meeting there is so much noise that no one can hear. Ms. Hogan[s] said that she was not aware of the program. I checked her file and found out that Ms. Candales referred Ms. Hogan[s] in July 5, 2000. Ms. Hogan[s] declined to participate. By signing (on March 29, 2001) the "supervisory referral to the District Support Agency" mentioned in Ms. Murphy's memorandum, Ms. Hogans signified that she had "been advised of the referral." Following the March 29, 2001, Conference-for-the- Record, Respondent continued to have unauthorized absences. On June 7, 2001, Barbara Moss, a district director in the School Board's Office of Professional Standards, held a Conference-for-the-Record with Respondent to discuss her absenteeism and her "future employment status" with the School Board. Ms. Moss subsequently prepared and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. In the "Action To Be Taken" portion of the memorandum, Ms. Moss stated the following: Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Associate Superintendent of School Operations, the Administrative Director of Transportation, and the Director of Southwest Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review, with endorsement by the Associate Superintendent, will compel formal notification of the recommended disciplinary action. All disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. Ms. Moss provided Respondent the opportunity, following the Conference-for-the Record, to present documentation concerning any unauthorized absence that Respondent believed should be excused. Respondent took advantage of this opportunity and provided Ms. Moss with five or six letters from the Office of the Miami-Dade State Attorney asking that Respondent's absence from work on various dates be excused because she was "subpoenaed to the Office of the State Attorney" on those dates in connection with a criminal case, State v. China Wilson, Case No F00-21153, in which she was an "essential witness." Upon reviewing the letters, Ms. Moss noticed that there were "obvious" alterations on "a couple of the letters." Dates had been typed in over "white-out" and they "were jammed together." Ms. Moss faxed to the Office of the Miami-Dade State Attorney copies of all of the letters she had received from Respondent following the June 7, 2001, Conference-for-the-Record and inquired whether these letters were authentic. Ms. Moss was told by the assistant state attorney assigned to the State v. China Wilson case that "there was only one letter that was authentic." Ms. Moss subsequently met with Respondent, who was accompanied during the meeting by the senior vice president of AFSCME, Christine Harris, and an AFSCME shop steward, Charlie Lynch. Ms. Moss "showed them the [letters she had received from Respondent] and let them know that [the School Board was] moving forward with dismissal." In response to this advisement, either Respondent or Ms. Harris indicated that Respondent wanted to resign in lieu of being terminated and that she would like to have the aforementioned letters returned to her. Ms. Moss gave Respondent back the letters (without making copies of them). Respondent then left. A few minutes later, Respondent returned and indicated that she was "rescind[ing] her offer to resign." On August 10, 2001, the Superintendent of Schools sent a letter to Respondent advising her that he was recommending that the School Board, at its scheduled meeting on August 22, 2001, "suspend [her] and initiate dismissal proceedings against [her] effective the close of the workday, August 22, 2001, for just cause, including, but not limited to: excessive absenteeism; non-performance and deficient performance of job responsibilities; and violation of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves." At its August 22, 2001, meeting, the School Board took the action recommended by the Superintendent of Schools. On more than one occasion during the 2000-2001 regular school year, Respondent had three or more consecutive workdays of unauthorized absences. The regular school year workdays during the 12-month period ending June 1, 2001, on which Respondent had unauthorized absences include (in addition to those set forth in the parties' January 11, 2002, Stipulation) the following: June 6, 2000 (whole day); June 9, 2000 (whole day); November 9, 2000 (whole day); December 15, 2000 (whole day); January 30, 2001 (half day); February 5, 2001 (whole day); May 25, 2001 (half day); May 30, 2001 (whole day); May 31, 2001 (whole day); and June 1, 2001 (whole day). Respondent also had numerous authorized absences (with and without pay) during the 12-month period ending June 1, 2001. From August 24, 2000, through May 24, 2001, she had 41 1/2 workdays of authorized absences without pay and ten and a half workdays of authorized absences with pay. Many of the authorized absences without pay were initially unauthorized absences, but they were converted to authorized absences without pay following the review of documentation provided by Respondent. The refusal of School Board administrators to excuse any additional unauthorized absences was within their sound discretion. They were under no obligation to do so. They acted reasonably, given Respondent's failure to present in a timely manner credible documentation demonstrating that these additional unauthorized absences were the result of extenuating circumstances and further considering Respondent's pattern of excessive absences. Respondent's excessive absences had an adverse impact on the Center's operations. As Ms. Murphy explained during her testimony (at page 158 of the hearing transcript): "[W]henever . . . a driver has a route and [the driver] take[s] off, then we have to place a substitute or a stand-by driver on it. And whenever that occurs, the route automatically runs late, because the regular driver[] knows the route better than the substitute driver or stand-by driver[].
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 pursuant Article XI, Section 4.B., of the AFSCME Contract. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. 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 16th day of May, 2002.
The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teaching certificate held by the Respondent, Matthew Fontes, based on an Administrative Complaint charging him with violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2014).
Findings Of Fact The Respondent holds Florida educator certificate 1138466, which expires on June 30, 2018. He is certified in guidance and counseling. From 2010 to 2014, he was a middle school guidance counselor at Narcoossee Community School in Osceola County. On October 9, 2013, two Narcoossee students, K.S. and H.F., got into a verbal argument. At the end of school the next day, K.S. got onto the bus and became concerned by the “dirty look” and hard stare H.F. was giving her and thought that more arguing and possibly physical fighting would take place if she stayed on the bus. To avoid a fight, K.S. and her cousin, A.L., got off the bus and went to the school’s administration building for K.S. to call her mother at work to pick them up. K.S. was adamant about not riding the bus, so her mother agreed to leave work and pick them up. K.S. and A.L. then went to find a school administrator. They found the Respondent in his office helping another student, S.W., with a written statement about an unrelated bullying incident. Standing in the doorway to the Respondent’s office, K.S. told the Respondent that she did not feel comfortable riding the bus home because a girl on the bus was giving her “dirty looks” and bothering her, and she was afraid there was going to be a fight. She did not say who the other girl was. She told the Respondent that she had called her mother, who was on her way to drive her and her cousin home, and asked if she could wait in the office for her. The Respondent asked if they were signed up for the after-school program for students who did not take the bus home and was told that they were not. The Respondent noticed Kelly Slade, a paraprofessional at the school, in the hallway and asked her if the office was closed, which it was. The Respondent then told the two students that he could not wait with them because he had an appointment with an air-conditioning repairman, and that they would have to ride the bus. He did not look for or use his school-issued radio to call another administrator. Instead, he led K.S. and A.L. back to the bus loading area. When they got outside the building, the buses were starting to leave the bus loading area. As he was running up to Dustin Sassic, the administrator in charge of buses, the Respondent yelled at him to hold the buses. Mr. Sassic complied with the Respondent’s request. As the Respondent approached Mr. Sassic, the students got on their bus, and Mr. Sassic “rolled” the buses (i.e., signaled to the bus drivers to continue to leave the school). When the Respondent reached Mr. Sassic, he told him there had been a problem, but the Respondent had to leave for an appointment. Mr. Sassic could not recall any specifics about the problem mentioned by the Respondent. The Respondent then walked directly to the teacher parking lot and left school to meet the air-conditioning repairman at his house. Not long after the buses left, H.F. started a fight with K.S. and punched her in the nose, causing it to bleed. The bus driver stopped the bus, and emergency medical services and the sheriff’s office were called. On her way to the school, K.S.’s mother received a telephone call from her daughter and was told what had happened. She then got a call from an emergency medical services technician regarding her daughter’s nosebleed and treatment and the location of the bus. She drove directly to the bus to see to her daughter’s needs. The next day, K.S.’s mother and father went to the school to ask the principal, Dr. Matthew Phillips, why their daughter was not allowed to wait for her under the circumstances, but instead was made to take the bus. At the time, the principal knew nothing about the incident. He followed up on the complaint by talking to Mr. Sassic and initiating an investigation. As a result of the investigation, the Respondent was reprimanded by the Osceola County School District for violating parts of the Principles of Professional Conduct, including rule 6A-10.081(3) regarding protecting students from harm. At the end of the school year, Dr. Phillips decided not to renew the Respondent’s employment contract because of the K.S. incident and other “struggles” in meeting the requirements of his job as guidance counselor at the school. Since then, the Respondent has not been employed as a teacher; he has been employed by his uncle, who has health problems, helping to take care of him and his orchard. The Respondent’s version of the incident on October 10, 2013, was starkly inconsistent with the greater weight of the evidence. He testified that K.S. did not appear to be at all stressed or upset about having to ride the bus and only told him that someone on the bus was bothering her. All the other witnesses confirmed that K.S. was visibly upset, definitely did not want to ride the bus that day, and told the Respondent that her mother was on the way to drive her home. Even if all K.S. said was that someone on the bus was bothering her, the Respondent asked no questions to better understand the situation. The Respondent then testified that he asked Ms. Slade, the paraprofessional, to supervise the cousins while he dealt with the other student in his office and to try to determine the facts and whether the cousins should ride the bus. He testified that he finished with the other student and returned to Ms. Slade and the cousins. He testified that Ms. Slade told him the cousins just said someone was bothering them and that she believed they should ride the bus. Ms. Slade categorically denied that any of this actually took place. Again, even if it happened that way, it would have been incumbent on the Respondent, as guidance counselor, to ask more questions to resolve the matter. The Respondent also testified that he explained the situation to Mr. Sassic, who concurred that the students should be required to ride the bus. Mr. Sassic denied this, and the greater weight of the evidence refutes the Respondent’s testimony. Simply put, the greater weight of the evidence was that the Respondent wanted to leave school to make his appointment with the air-conditioning repairman. This desire led to a poor decision to place the cousins back on the bus without giving the matter adequate attention. He unreasonably took a chance that the threat to K.S. was not credible. This placed K.S. in physical danger. The offices of the school’s other administrators, including the principal, Dr. Phillips, were a short distance from the Respondent’s office. If the Respondent was too busy to help K.S., he should have gone to one of the other administrators for assistance. The Respondent also had a school-issued radio, as did all the administrators at the school, but did not attempt to use it to call for assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending his teacher certificate for six months to impress on him the importance of taking responsibility for his actions and acting in accordance with the Principles of Professional Conduct in general, and rule 6A-10.081(3)(a) in particular. DONE AND ENTERED this 6th day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of January, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material to this proceeding, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Volusia County, Florida. Respondent, Tamika Whitaker, began working as a bus driver for the School Board in 2002. At all times relevant to the allegations in the Superintendent's Statement of Charges, Respondent was assigned to the bus route of Riverview Learning Center. In order to be employed as a school bus operator, Respondent had to undergo sixty hours of initial training, consisting of thirty-two hours of classroom training reviewing rules, policies, and procedures, and twenty-eight hours of training on the school bus. Respondent was also required to obtain a Class B commercial driver's license (CDL) with a passenger endorsement. This allows the bus operator to drive a bus that is approximately 40 feet long and 10 feet wide, weighs 24,000 to 26,000 pounds unloaded, and can carry approximately 77 passengers. School bus operators are required to know and abide by all federal and state laws, rules, and regulations pertaining to operating school buses, as well as all policies, practices, and procedures of the School Board. During her initial training, Respondent was provided a copy of the School Board's Student Transportation Services Procedural Manual and was trained regarding the procedures therein. Each time a change is made to the Manual, bus drivers are provided copies of the changes. In addition to her initial training, pursuant to Florida Department of Education rules, Respondent was required to complete eight hours of recertification training every year. The recertification training is designed to educate transportation staff on any new laws, rules, and regulations, and on policies, practices, and procedures of the School Board. At the March 2010 recertification training, changes to U.S. Department of Transportation's interpretation of federal regulations were discussed. Under the revised interpretation, texting while driving would be prohibited.1/ On May 4, 2010, Respondent's afternoon bus route was completed approximately 40 minutes later than usual. Because such a delay is unusual, the School Board investigated the delay pursuant to standard practices. This included review of the GPS report for the bus Respondent was driving, review of the video for the bus, and inquiry to the Student Transportation Services dispatch office. Greg Akin is the Director of Student Transportation Services for the School Board. He asked Patricia Rush, lead driver at the New Smyrna terminal, to review bus video of Respondent from her May 4, 2010, route to determine the cause for Respondent's delay. By accident, Ms. Rush watched a video from a different day, and saw actions of Respondent which Ms. Rush determined to be unsafe. Specifically, Ms. Rush described what she saw, "driving with no hands . . . driving with her elbows . . . using the cellular telephone . . . drinking out of a mug. There were students on board. I was just kind of shocked that she was doing that." Ms. Rush's concern regarding the use of the mug was that it was a large mug and appeared to Ms. Rush to block Respondent's face when she raised it to drink out of it while driving. Ms. Rush reported what she saw on the video to William Ralys, an area manager, who asked her to continue to review bus videos of Respondent and to archive what she saw. Ms. Rush reviewed the bus video of Respondent's routes on May 4, 2010, and observed Respondent pull over for a long period of time and use her cellular telephone. She also viewed the bus video of Respondent's routes on May 6, 2010, and observed Respondent using her cellular telephone while operating the bus with students on board. An internal investigation was conducted during which bus videos of several days of Respondent's routes were viewed by Mr. Akin, Assistant Director of Student Transportation Services Chip Kent, and by Mr. Ralys. Mr. Akin wrote a detailed chronology of what he observed Respondent doing while operating the school bus on April 30, 2010; May 3, 2010; and May 4, 2010. Bus video of Respondent's routes shows Respondent placing a call and talking on her cellular telephone while operating a school bus at approximately 4:00 p.m. on May 3, 2010. Respondent's cellular telephone records show she sent and received numerous text messages during her routes on that date.2/ Bus video of May 4, 2010 shows Respondent checking her cellular telephone, placing a call, and talking on the phone while operating the school bus. At approximately 3:32 p.m., the video shows Respondent talking on the phone regarding a personal matter. She told the person to whom she was speaking to "hold on, let me turn, hold on." Respondent then lowered her cellular telephone to her lap and waved out the window. Respondent then resumed her telephone conversation after turning. Also on May 4, 2010, the bus video of Respondent shows, and Respondent acknowledged, that she spent approximately 42 minutes stopped at a location, the library, which is not part of her route assignment. During this time, she again used her cell phone for talking and messaging for personal reasons. Students were not on the bus at this time, but Respondent was still "on the clock." Respondent's cellular telephone records for May 4, 2010, show that she sent and received numerous text messages while on her routes. Bus video for May 6, 2010, and her cellular telephone records, show Respondent using her cellular telephone to read and type text messages while operating the school bus with students on board, as well as to make phone calls. Bus video shows Respondent drinking from a large pink mug or container on multiple days while operating the school bus. Respondent has used this large mug for seven years and had not previously been disciplined for using it, nor had anyone told her to stop using it while driving her routes. Students on Respondent's bus were aware of her text messaging and complained to her about it. The bus video of May 6, 2010, shows Respondent holding her cellular phone in one hand while driving students. She appears to be reading incoming texts and texting while driving. She then pulls over to text message, at which time the students complain. One student said "We gotta pull over so you can text." He also said, "Oh, this is great, and "Drop me off . . . I can walk faster." Another student said to Respondent, "You can text and drive at the same time, I don't mind." The first student then offered to text message for Respondent, but she retorted, "You can't spell." Respondent presented evidence of another School Board employee, Sandra McDavid, a bus attendant, who was disciplined for not properly securing seat belts to wheel chair students and for talking on a cellular phone while operating the wheel chair lift while loading a wheel chair student. Ms. McDavid was suspended without pay for 20 days. Respondent argues that Ms. McDavid's case is similar to Respondent's, yet Respondent is receiving much harsher disciplinary action.3/ In a letter dated May 7, 2010, the Assistant Director of Student Transportation Services notified Respondent that her driving duties were temporarily suspended pending the outcome of an investigation. On June 17, 2010, Mr. Akin sent a letter to Respondent notifying her that she would be recommended for termination from employment. The letter was accompanied with the Statement of Charges signed by Superintendent Smith. At hearing, Mr. Akin noted that Respondent's case "is the first time [he] ever [saw] a case that involves this many issues on repeated days." On June 20, 2010, Respondent requested a hearing on her termination which gave rise to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Volusia County School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of December, 2010.
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges filed January 10, 2002, and whether the Respondent should be dismissed from her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes. Background Ms. Delice was employed by the School Board as a school bus driver trainee in May 1997. She successfully completed her training and was duly placed on permanent status as a bus driver for the Miami-Dade County school system. Ms. Delice is a member of the American Federation of State, County, and Municipal Employees, Local 1184, and she is subject to the Contract Between the Miami-Dade County Public School and the American Federation of State, County, and Municipal Employees, Local 1184, effective from July 1, 2000, through June 30, 2003 ("Union Contract"). In 1998, when Ms. Delice was working at the School Board's Southern Regional Transportation Center, she came to know Rhonda Ferguson, another bus driver working at this facility. Ms. Ferguson began making overtures to Ms. Delice, asking for her phone number and generally acting, in Ms. Delice's estimation, like a co-worker who wanted to become friends. A co-worker who had overheard a conversation between Ms. Delice and Ms. Ferguson told Ms. Delice that Ms. Ferguson was a lesbian. Ms. Delice became very upset, and, even though Ms. Ferguson had never made any physical or overt verbal advances, Ms. Delice concluded that Ms. Ferguson was harassing her and that she was being subjected to working in a "hostile environment." Ms. Delice told Ms. Ferguson to leave her alone, but she did not complain to her supervisors that, in her estimation, Ms. Ferguson was bothering her. Ms. Delice was subsequently transferred to the Southwest Regional Transportation Center ("the Southwest facility"), and, about eight months later, Ms. Ferguson was transferred to the Southwest facility as well. A co-worker told Ms. Delice that Ms. Ferguson was spreading stories about Ms. Delice to the effect that the two women were having an affair. On January 20, 1999, Ms. Delice confronted Ms. Ferguson in the workplace, and the two women became involved in a verbal and physical altercation. After the altercation, Ms. Delice was temporarily transferred to the Central West Regional Transportation Center ("the Central West facility"). An investigation was conducted, and the charges against Ms. Delice and Ms. Ferguson were substantiated. Although a 30-day suspension without pay was the recommended discipline, it was finally decided that Ms. Delice and Ms. Ferguson would be permanently assigned to the location of their alternate assignments. Accordingly, Ms. Delice was permanently transferred to the Central West facility in February 1999. Although Ms. Delice knew she was "somewhat" emotionally affected by the advances of Ms. Ferguson, it was the transfer to the Central West facility that "turned her whole life upside down."1 Ms. Delice was distressed at the condition of the physical plant at the Central West facility, and she described it as a "boot camp." Ms. Delice complained that the road leading into the facility was narrow and very dark, with rocks on one side and a lake on the other; that the location was unsafe; that there were potholes in the gravel lots where the buses were kept; that the gravel lots turned to mud when it rained and were very dusty when it was dry; that the lighting was non-existent; that she was required to park in the employee parking lot and walk a half-block to the office to pick up her bus assignment and another half-block to her bus, often in the mud; that there were mosquitoes and frogs on the buses, and she had to be careful not to sit on a frog; and that something, maybe asbestos, was coming out of the walls of the employee break room. Ms. Delice blames Ms. Ferguson for her transfer to the Central West facility, and she thinks that she should have been disciplined for the altercation in January 1999 rather than transferred to the Central West facility. Finally, Ms. Delice called Barbara Moss, a District Director of the School Board's Office of Professional Standards, and asked if she could be transferred back to the Southwest facility. Ms. Delice told Ms. Moss that she had transportation problems because she drove an old car that was always breaking down because of the bad roads at the Central West facility and that the Southwest facility was closer to Ms. Delice's home than the Central West facility. Ms. Moss secured a transfer for Ms. Delice back to the Southwest facility, effective in March 2000. Ms. Delice did not mention any emotional problems, stress, or poor working conditions to Ms. Moss. Ms. Delice worked at the Southwest facility until she was suspended by the School Board on October 24, 2001, pending initiation of dismissal proceedings. Absences Each year, school bus drivers receive a copy of the Handbook for School Bus Drivers, Aides and Operations Staff ("Handbook"), and Ms. Delice's supervisor at both the Central West facility and the Southwest facility went over the Handbook with employees at the beginning of each school year. Section 9 of the Handbook describes in detail the attendance policy for transportation employees. A bus driver working for the School Board accrues a total of ten days combined paid sick and personal leave each school year. Between December 1, 1999, and June 1, 2000, Ms. Delice took 64 days of unauthorized leave without pay, 11.5 days of authorized leave without pay, and six days of paid sick/personal leave. Between August 28, 2000, and June 13, 2001, Ms. Delice took 26.5 days of unauthorized leave without pay, 21 days of authorized leave without pay, and ten days of paid sick/personal leave. Ms. Delice was absent without authorization on three consecutive workdays on January 17, 18, and 19, 2001; February 1, 2, 5 and 6, 2001; and May 30 and 31 and June 1, 2001. Between August 28, 2001, and October 24, 2001, the date of her suspension, Ms. Delice had three days of unauthorized leave without pay, one day of authorized leave without pay, and seven days of paid sick/personal leave. Between August 28, 2001, and October 10, 2001, the date Ms. Delice was advised that the superintendent was recommending her termination, Ms. Delice took six days of paid sick/personal leave, but no days of either authorized or unauthorized leave without pay. Reminders and Conferences for the Record On October 25, 1999, Michael Exelbert, a coordinator at the Central West facility, issued to Ms. Delice a Notice of Performance Expectation Requirement, Attendance (Follow-Up Verbal), in which Ms. Delice was issued a verbal reminder of her responsibilities with respect to attendance. She was referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On December 8, 1999, Mary Murphy, the Director of the Central West facility, issued to Ms. Delice a Notice of Performance Expectation/Requirement, in which Ms. Delice was again reminded of the expectation regarding attendance, specifically with respect to her being absent without leave after not calling or showing up for work on November 15, 17, and 23, 1999. Ms. Delice was again referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On February 7, 2000, Mr. Exelbert conducted a Conference for the Record with respect to Ms. Delice's "no call/no show" absences without leave on September 13, 15, 19, and 21, 1999; November 15, 17, and 23, 1999; December 16, 1999; and January 3, 2000. As set forth in the summary of the conference, Ms. Delice explained her absences as follows: "You indicated that you had had car problems, had a problem with the staff in Dispatch, and that every once in a while you needed a day off." As a result of documentation provided by Ms. Delice, September 19 and November 23, 1999, were removed as absences without leave. Ms. Delice was referred to Section 9 of the transportation employee's Handbook for the applicable attendance policy. On June 1, 2000, after her March 2000 transfer to the Southwest facility, a Conference for the Record was conducted by Aned Lamboglia, a coordinator at the Southwest facility, with respect to Ms. Delice's unauthorized absences subsequent to September 1, 1999. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified 53.5 days of unauthorized leave without pay, 11 days of authorized leave without pay, and six days of paid sick/personal leave between September 1, 1999, and June 1, 2000; Ms. Lamboglia also noted that Ms. Delice had missed "at least" 10.5 days of work since she was transferred to the Southwest facility in March 2000. As set forth in the summary of the June 1, 2000, conference, Ms. Delice explained her absences as follows: You stated that some of your unauthorized absences were due to the fact that you had serious transportation problems. You were administratively transferred to Central West Transportation and this had caused a serious hardship for you since the vehicle you drove kept breaking down. You also stated that you were not aware that you could provide documentation for authorization of leave time when you did not have sick or personal time. Ms. Lamboglia advised Ms. Delice during the conference that her attendance record was unsatisfactory, and she reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract. She also advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. On June 1, 2000, Ms. Lamboglia also referred Ms. Delice to the School Board's Employee Assistance Program ("EAP"). Ms. Lamboglia received notification from the clinical coordinator of the EAP, dated July 21, 2000, that Ms. Delice's case had been closed after Ms. Delice failed to attend a scheduled conference and denied that she had any job performance problems. On October 25, 2000, Ms. Lamboglia, then Mrs. Candales, conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to June 1, 2000. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified four and one-half days of unauthorized leave without pay, with two and one-half days of the total occurring during the new school year. According to the summary of the conference, Ms. Delice had nothing to say regarding these absences. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. In light of her June 1, 2000, referral of Ms. Delice to the EAP, Ms. Candales did not make a referral after the October 25, 2000, conference. On April 23, 2001, Mrs. Candales conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to October 25, 2001. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified approximately 18 days of unauthorized leave without pay. According to the summary of the conference, Ms. Delice explained her unauthorized absences by stating that she continued to experience car problems. Ms. Delice provided Mrs. Candales with documentation, and Mrs. Candales agreed to authorize four days of the 18 days of leave without pay. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that her absences were excessive under Article XI, Section 4, of the Union Contract and could lead to disciplinary action such as termination or non-reappointment. In addition, Ms. Candales referred Ms. Delice to the EAP on April 23, 2001. On June 8, 2001, Ms. Murphy, who had transferred from the Central West facility and was Director of the Southwest facility, conducted a Conference for the Record with respect to Ms. Delice's job performance in the area of attendance. Ms. Murphy noted that Ms. Delice had accumulated 25.5 days of unauthorized leave without pay since the beginning of the school year. According to the summary of the conference, Ms. Delice gave the following explanation: You mentioned during the conference that sometimes your car breaks down and you cannot make it to work. Also, if you are not feeling well you do not come to work. You are currently participating with the District Support Agency, and you are waiting for Mr. Portier to send you to a psychiatrist. You stated that you requested to see a psychiatrist because of the conditions at Central West Transportation. According to you, you began to have attendance problems when you were transferred to "Boot Camp": A.K.A., Central West Transportation. Being at this location caused you to have emotional stress. Prior to going to Central West Transportation, you did not have an attendance problem. You explained that during 1997 through 1999, you did not have an attendance problem. . . . You also mentioned that Mr. Portier's services did not meet your problem because your problems were financial. Ms. Murphy reviewed with Ms. Delice Article XI, Section 4(B) of the Union Contract, which provides that unauthorized absences for three consecutive workdays or for ten days during the previous 12-month period were grounds for termination. Ms. Delice was advised that a copy of the summary of the conference would be sent to the Administrative Director, Jerry Klein, and to the Office of Professional Standards for review and possible disciplinary action. In a memorandum dated June 20, 2001, Mr. Klein recommended to Ms. Moss at the Office of Professional Standards that Ms. Delice be dismissed from her employment with the School Board because she had "accumulated 25.5 days of unauthorized leave without pay." On July 23, 2001, Ms. Moss conducted a Conference for the Record with respect to Ms. Delice's "excessive absenteeism; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves." Ms. Delice's record was reviewed, and her future employment status with the School Board was discussed. Ms. Moss identified total absences between September 1, 2000, and June 8, 2001, of 54.5 days, consisting of 23 days of unauthorized leave without pay, 21.5 days of authorized leave without pay, six personal, and four sick days. According to the summary of the conference, Ms. Delice explained her unauthorized absences as follows: "'My problem with attendance started when I was sent to the 'boot camp' at Central West Transportation. That center is very depressing and dusty.'" In response to the observation that the purpose of the conference was to discuss Ms. Delice's attendance problem at the Southwest facility, Ms. Delice replied: "'I'm just getting over the conditions I was subjected to at Central West Transportation. I feel that I am not being given a chance to improve.'" Ms. Delice was advised that, once a review of the relevant materials was completed, she would be notified of the recommended disciplinary action. Ms. Moss further advised Ms. Delice that "[a]ll disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record." Ms. Delice was referred through the EAP to Dr. Lynne Schettino, a psychologist. Dr. Schettino initially assessed Ms. Delice on August 17, 2001, and Dr. Schettino saw her in individual sessions on August 28, 2001, and September 11, 2001; Ms. Delice cancelled two additional scheduled appointments with Dr. Schettino and did not reschedule. Ms. Delice identified absenteeism as a major problem, attributing it to "a transfer to another location [that] had been very stressful for her and that this resulted in significant anxiety, depression and avoidant behavior."2 Dr. Schettino determined that Ms. Delice's treatment should focus on coping with work stressors and developing interpersonal skills "to allow appropriate adjustment to the work place,"3 but Dr. Schettino did not have time to reach a diagnosis or develop a treatment plan for Ms. Delice. Ms. Delice entered into a "contract" with Dr. Schettino regarding her attendance, and, although she took six days of sick/personal leave between August 28, 2001, and October 10, 2001, Ms. Delice had no days of authorized or unauthorized leave without pay. In a letter dated October 10, 2001, Ms. Delice was notified by the Superintendent that he was recommending to the School Board that she be suspended from her employment and dismissal proceedings initiated against her for just cause, including but not limited to: excessive absenteeism; abandonment of position; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-3E- 1.10, Transportation-Specific Procedures (Attendance Policy); 6Gx13-4A-1.12, Responsibilities and Duties; 6Gx13-4E-1.01, Absences and Leaves." The Superintendent also noted that the dismissal recommendation was taken in accordance with, among other things, Article XI, Section 4(B) and (C), of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Elza Delice guilty of abandonment of position and excessive absenteeism, sustaining her suspension effective October 24, 2001, and terminating her employment. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 May, 2002.
