The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
The Issue The issue in this proceeding is whether Petitioner has just cause to terminate Respondent's employment for an altercation he was involved in that occurred on his bus.
Findings Of Fact Based on the evidence credited by the undersigned at the hearing, the undersigned makes the following findings of material and relevant fact: Wint has been employed by the School Board as a school bus driver for approximately 15 years. There was no evidence presented that Wint had been disciplined for any prior instances of misconduct as a bus driver. Wint is covered as an employee under the Collective Bargaining Agreement of the American Federation of State, County, and Municipal Employees, Local 1184 (CBA), which provides that rights thus reserved exclusively to the School Board and the Superintendent . . . include . . . separation, suspension, dismissal and termination of employees for just cause. Pet. Ex. 1, § 3. School Board Policies 4210, 4210.01, 4213, and 8600 were entered as exhibits and apply to Wint's employment.1/ Pet. Exs. 2–5. The School Board issued a Handbook for School Bus Drivers and Bus Aides (Handbook) for the 2017-2018 school year, which applies to Respondent's employment. The Handbook was admitted into evidence.2/ Pet. Ex. 6. School Bus Incident on October 10, 2017 To summarize, on October 10, 2017, Wint was transporting a large group of middle school students on his school bus. Due to a disruption by one of the students, Wint felt it was necessary to pull the bus over. Wint stopped the bus and went to the back to confront a 13-year-old, 8th-grade male student who had intentionally and unnecessarily opened the bus's emergency window, setting off the bus alarm.3/ A video of segments of the confrontation was recorded by students and entered into evidence. Pet. Exs. 15 and 16. Petitioner's Exhibit 16 is video coverage of the first part of the physical altercation between Wint and the male student. Petitioner's Exhibit 15 is video coverage of the second part of the physical altercation, after both had moved back down the bus aisle to return to their respective seats on the bus.4/ With respect to the details, the incident unfolded as follows: while the bus was in motion, the male student left his assigned seat without permission, went to the back of the bus, and opened the emergency exit window, causing the bus's audible alarm to sound.5/ Wint was required to immediately stop the bus to address the emergency alarm going off. Instead of directly calling dispatch as stated in the Handbook, Wint went to the back of the bus to confront the student, order him back to his assigned seat, assess the situation, and determine the best course of action. Pet. Exs. 15 and 16; Pet. Ex. 6, § 10.06(c). Wint went to the back of the bus and confronted the male student. The altercation started when the male student rose up slightly out of the bus seat and punched Wint in the stomach several times. This evidence was uncontradicted. No other testimony or documents were offered to rebut this evidence. (These initial moments of the confrontation are not on the videos.) The first part of the cellphone video is shot from an elevated angle from the rear bus seat and starts by showing the two locked up, struggling in the back of the bus. Wint has his hands on the male student pulling him up forcefully and attempting to push the male student back up the aisleway to the front of the bus where his seat was located, and away from the other students. The male student pulled free from Wint's grasp and started up the aisleway. However, he turned around immediately and tried to shove Wint. Another male student interceded and restrained the male student by temporarily putting him in a headlock. When this occurred, Wint held back in the aisleway near the rear of the bus, watching and collecting himself. After the initial confrontation in the back of the bus, the second cellphone video picks up the action from a different angle (shooting from the middle of the bus towards the back). Several other students intervened to keep Wint and the male student separated. The male student tried to start up the altercation again and attempted to break through several students to get back at Wint. Wint is standing cornered in the back of the bus with his back to the emergency exit. While all this is going on, there is general pandemonium inside the bus with the other 20 to 25 students watching, yelling, or jeering at the scene. Notably, several of the other students appear frightened or alarmed and are very close to the altercation as it unfolds. The mid-bus cellphone video shows the male student turning around to head back up the bus aisleway. The male student is visibly angry, very upset, and is seen forcefully pounding his fists together defiantly as he walks. Wint is off camera, but the undersigned reasonably infers that Wint is behind the male student following him back up towards the front of the bus. As he walks up the aisleway in front of Wint, in an overt display of strong aggression and uncontrollable anger, the male student leans across a bus seat and violently punches a school bus window with his clenched fist.6/ Pet. Ex. 15. As Wint came down the narrow aisle behind the student and attempted to squeeze past him to continue to the driver's seat, Wint accidentally brushed against the male student.7/ At that point, the video shows the male student rapidly wheel around and the two begin to tussle, hands on each other, in the bus seat. Wint backs the male student up into the bus seat, closer to the window. Wint has both hands near, but not on, the neck area of the male student. There is no punching or swinging, just restraining and controlling. The more persuasive and credible evidence does not support the School Board's claim that Wint was intentionally choking the student with a pressure hold around his neck, nor holding the male student around the neck with his hands. Rather, the more persuasive evidence shows, and the undersigned finds, that Wint is attempting to control and restrain the student by holding him firmly by the collar of his jacket/sweatshirt.8/ At the end, when a female student jumped in to separate the two, Wint abruptly released his hold and headed back to his driver's seat. The cellphone video ends at that point. Although the evidence was conflicting, it revealed, and the undersigned credits, that Wint had previously notified the Miami-Dade County School District (District) in writing that this particular male student had been repeatedly disruptive on his bus. Specifically, Wint complained in writing on or about October 4, 2017, that the same male student had been improperly opening the window and throwing objects outside the bus. His report was on a standard reporting form required by the School Board. It is called Student Case Management Referral, No. 723119. This other reported incident occurred on or about September 29, 2017, several days before the altercation. Resp. Ex. 1. The Student Case Management Referral form turned in by Wint was initialed by a District employee on October 4, 2017, just days before this bus incident on October 10, 2017.9/ Susan Detmold is the district director for Transportation Services since 2013. Detmold viewed the two videos of the altercation between Respondent and the male student. Pet. Exs. 15 and 16. Detmold opined that it was inappropriate behavior for a bus driver to engage in the behavior exhibited in the videos. Detmold testified that if a student is not sitting in his assigned seat, then the school bus driver should give warnings and provide a misconduct referral to the District.10/ She also testified that in accordance with State Board Rule, only the school principals have the authority to discipline students.11/ Detmold testified that the Handbook provides drivers with procedures to follow when handling student misconduct on the bus. Pet. Ex. 6, §§ 10.06-10.07, pp. 94-96. The Handbook states that school bus drivers can stop the bus if the behavior is a serious one. Drivers will immediately contact their Dispatch Office by two-way radio and provide them with details of the situation. Drivers are to await the aid of the field operations specialist or school police. Pet. Ex. 6, § 10.06(c), p. 94. Wint disregarded this guideline in the Handbook and testified that he stopped the bus, went to the back of the bus to confront the student, but did not call Dispatch for school police until after the physical altercation with the male student had ended. The Handbook states in accordance with Florida Administrative Code Rule 6A-3.0171, State Board Rule, it is the responsibility of the bus driver [t]o maintain order and discipline, under the direction of the school principal, on the part of every passenger. Pet. Ex. 6, § 2.03(i), p. 13. The videos show, and the undersigned finds, that Wint attempted, by his actions, to maintain order and safety on the bus in the face of a very unruly, aggressive, and violent male student who was putting the safety of the bus, the bus driver, and other students at risk. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus driver is responsible for the safety of the children in his/her care. A driver should place the safety, health, and well-being of his/her passengers above everything else while they are on the bus. Drivers shall maintain a professional attitude. Drivers should be patient, firm, fair, and friendly. Pet. Ex. 6, § 2.05(e), p.15. The Handbook also states, in part, the school bus drivers will make a reasonable effort to deal with infractions of the rules of student conduct and will, to the best of their ability, maintain order and good behavior by students on their buses. Pet. Ex. 6, § 2.05(o), p. 17. The videos show, and the undersigned finds, that Wint attempted during this incident to maintain order and safety on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus drivers must not touch or put [their] hands on students. Pet. Ex. 6, § 2.06(a), p. 21. The videos show that Wint did indeed lay his hands on the student, but the undersigned finds that this was done to restrain and control a very unruly and violent student, who presented a safety risk to the operation of the bus and other students on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, school bus drivers will not physically discipline . . . any student. Pet. Ex. 6, § 10.07(d), p. 96. The videos do not show that Wint physically disciplined a student. Rather, he justifiably attempted to control a violent, angry, and uncontrollable student who placed his safety and the safety of other students at risk. Pet. Exs. 15 and 16. Ultimate Findings of Fact Under the facts outlined herein, the undersigned finds that Wint's actions and conduct during this incident conformed with sections 1006.10 and 1012.45, Florida Statutes. The undersigned finds that the School Board's rules, policies, and Handbook provisions proscribe conduct authorized or required by sections 1006.10 and 1012.45 for a bus driver dealing with an unruly and violent student in an emergency situation. To the extent they do so, they are invalid and not controlling.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County immediately reinstating Respondent, Livingston Wint, to his position as school bus driver and provide him with back pay and other accumulated benefits since his suspension. DONE AND ENTERED this 8th day of August, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 8th day of August, 2018.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
The Issue Whether Respondent has committed a discriminatory employment practice against Petitioner by virtue of Petitioner's race. (In deference to Petitioner’s preference, his race will be referred-to as "Black.")
Findings Of Fact Lenore Kimmons is an adult "White" female. She was initially hired in July 2004, in Milton, Santa Rosa County, Florida, by Laidlaw Education Services (Laidlaw) as a school bus driver. At that time, Laidlaw had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 13, 14, and 15.) Effective April 1, 2005, Laidlaw and Amalgamated Transit Union (Local 1395/AFL-CIO), a mechanics’/maintenance union, entered into a collective bargaining agreement. (Stipulation 8.) This collective bargaining agreement (mechanics’ union contract) continued to be in effect when Petitioner was initially hired by Laidlaw, and by the use of executed “successor clauses,” continued in effect through the period of alleged discrimination. (Stipulation 8.) In the absence of any persuasive evidence to the contrary, the undersigned takes the “effective date” of the mechanics’ union contract to constitute its “ratification” date, as well. Petitioner is an adult “Black” male. Laidlaw initially hired him in Milton, Florida, on September 18, 2006, as a "B Mechanic.” At that time, Laidlaw still had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 1, 2, 3, and 7.) Petitioner was subject to the mechanics’ union contract, beginning with his September 18, 2006, date of hire and continuing past the alleged date of discrimination in 2008. Petitioner has had extensive heavy vehicle mechanical experience since 1989. He has worked for the United States Air Force and Department of Defense in Europe, and he supervised two vehicle maintenance shops prior to being hired by Laidlaw. He holds an Associate degree in automotive technology. Upon being hired in July 2004, Ms. Kimmons had begun work as a school bus driver (Stipulation 14) and shortly thereafter began to train as a mechanic. When she began training as a mechanic, she was reclassified into a “C Mechanic” position. As a “C Mechanic,” Ms. Kimmons ceased to be subject to the bus drivers’ union’s collective bargaining agreement and became subject to the mechanics’ union contract that eventually governed Petitioner. Sometime in 2006, Ms. Kimmons began to clerk in the office, but she continued to be classified as a “C Mechanic” and continued to be subject to the mechanics’ union contract. The mechanics’ union contract makes a distinction between employees hired before its ratification on April 1, 2005, such as Ms. Kimmons, and employees hired afterwards, such as Petitioner. It does not make a distinction based upon when one became a mechanic. The mechanics’ union contract provides, in pertinent part: MAINTENANCE DEPARTMENT JOB DESCRIPTIONS/CLASSIFICATIONS ARTICLE 28 Section 1 only applies to current employees who are already employed prior to the ratification of this labor agreement. * * * “A” Mechanic – required to have a minimum of 2 years experience Is defined as maintenance employee(s) who hold a Florida State Certification for School Bus Inspections. Required to work with limited supervision. The employee should have good skills and who is capable of repairing bus and white fleet including brake inspections and repair. The employee is capable of assisting and instructing lower classification mechanics. Must have and maintain a Florida CDL including “S” endorsement. “B” Mechanic – required to have a minimum of 3 years experience Is defined as maintenance employee(s) who assist higher classification mechanics. Work with supervision when required. Assists with inspection including all necessary repairs. Must have and maintain a Florida CDL including “S” endorsement. “C” Mechanic – entry level employee(s) Is defined as maintenance employee(s) who shuttle, clean, fuel, and as otherwise directed by management. Also responsible for minor cosmetics around shop such as crush oil filters, sweep areas in need, empty trash, dip tanks, and assist mechanics if necessary with full supervision by other Management personnel. Must have and maintain a Florida CDL including “S” endorsement. * * * Section 5 As of the ratification of this AGREEMENT the job descriptions for all new hires will be as follows: * * * “A” Mechanic Is defined as a maintenance employee who holds a minimum of three (3) ASE School Bus Certifications to include at least a) Air Brake, b) Steering and Suspensions, c) Diesel Engines and a Florida State Certification for School Bus Inspections. The employee is required to have a minimum of 3 years of “medium/heavy duty” technician experience (“B” Mechanic level). The employee must have good skills, is capable of diagnosing and repairing school buses and white fleet including brake inspections and repair in a reasonable length of time, in a professional manner and be able to work with limited supervision. The employee is also capable of assisting and instructing lower classification mechanics. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “B” Mechanic Is defined as a maintenance employee who holds a minimum of two (2) ASE School Bus Certifications to include at least a) Air Brake[1] and b) any of the other six (6) ASE School Bus Certifications. The employee is required to have a minimum of 2 years of “medium/heavy duty technician experience. The employee must also have good working skills, be able to assist with any inspection and all repairs as well as work with supervision when required. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “C” Mechanic Is defined as a maintenance employee who is capable of shuttling, cleaning fueling and as otherwise directed by Management. The employee is responsible for minor cosmetics around the shop such as crush oil filters, sweep areas in need, empty trash, dip tanks and assist mechanics if necessary with supervision by other maintenance personnel. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. (Emphasis supplied) At no time material has either Petitioner or Ms. Kimmons ever been a member of the mechanics’ union, but from its inception, the collective bargaining agreement between Laidlaw and the mechanics’ union applied to all mechanical employees, regardless of any employee’s union membership or lack of union membership. Petitioner has been outspoken in his refusal to join the mechanics’ union. Laidlaw was purchased by First Student, Inc., on October 1, 2007. (Stipulation 9.) Upon First Student, Inc.’s purchase of Laidlaw, Petitioner and Ms. Kimmons became employees of First Student, Inc. (Stipulation 10.) First Student, Inc., is the only Respondent in this cause. Upon First Student, Inc.’s purchase of Laidlaw, the mechanics’ union contract then in existence was carried over to bind First Student, Inc. At no time material has either Petitioner or Ms. Kimmons possessed an ASE School Bus Certification in Air Brake, an ASE School Bus Certification in Steering and Suspensions, or an ASE School Bus Certification in Diesel Engines. (Stipulations 4, 5, and 6.) Petitioner and Ms. Kimmons took the examination for the Florida State Certification for School Bus Inspections in February 2008. (Stipulations 11 and 12.) Petitioner could not demonstrate that Ms. Kimmons did not have the prerequisite number of years of experience or other qualifications to sit for the examination. Petitioner’s testimony, that in February 2008, and up to the date of hearing herein, he was Respondent's only “Black” mechanic in Mechanic Classes A, B, and C, was not refuted. In February 2008, Petitioner and Ms. Kimmons both passed the Florida State Certification for School Bus Inspections examination. At that time, both of them believed that successful completion of the examination would entitle them to be appointed as Class A mechanics, to a rise in pay grade, and to a $1.00/per hour raise in pay. (Stipulations 16, 17, and 18.) Lenore Kimmons requested an increase in pay and an increase in grade from “C Mechanic” to “B Mechanic” after she completed her Florida State Certification for School Bus Inspections. (Stipulation 16.) Petitioner requested an increase in pay and an increase in grade from “B Mechanic” to “A Mechanic,” after he completed his Florida State Certification for School Bus Inspections. (Stipulation 18.) In February 2008, Ron Kramer was the immediate supervisor of both Ms. Kimmons and Petitioner. He notified his superiors, up the line of command, that Ms. Kimmons and Petitioner had passed their February examination and that he, Mr. Kramer, believed that each of them was entitled to a rise in grade and to a commensurate raise in pay. (Stipulations 16, 17, and 18.) Approximately two months passed after the February 2008, examination, and Ms. Kimmons did not receive her requested rise in grade or raise in pay. Petitioner, likewise, did not receive any rise in grade or raise in pay. The union filed grievances on behalf of Petitioner and on behalf of Ms. Kimmons, resulting in an increase in pay and a rise to "B Mechanic" for Ms. Kimmons, but no raise and rise to “A Mechanic” for Petitioner. (Stipulations 17 and 20.) Pursuant to the union contract and Ms. Kimmons’ hire prior to its ratification, the raise/rise from Class C to Class B did not require any ASEs, but a raise/rise from Class B to Class A would have required Petitioner, who was hired after contract ratification, to have three specific ASEs that he did not possess. These ASEs were in Air Brake, Steering and Suspensions, and Diesel Engines. Ms. Kimmons had been hired in 2004, before the 2005, effective date of the collective bargaining contract for mechanics. Petitioner had been hired in 2006, after the 2005, effective date of the collective bargaining agreement for mechanics. Petitioner's rate of compensation was $12.99/hour, when his request for a raise in pay and rise in grade was denied. Had his grievance been successful, he would have received $1.00 more per each hour worked as an "A Mechanic." (Stipulation 19.) First Student, Inc., ceased all operations in Santa Rosa County, effective June 30, 2008. (Stipulation 21.) Petitioner has not been employed by First Student, Inc., since June 30, 2008. (Stipulation 22.) Most, if not all, of First Student, Inc.’s employees in Santa Rosa County, including Petitioner, were hired by Durham School Services in July 2008, at the same respective pay and grade at which they were employed by First Student, Inc., on June 30, 2008. (Stipulation 24.) Petitioner is currently employed by Durham School Services and has been so employed since July 1, 2008. (Stipulation 23.) Had Petitioner received his raise in pay and rise in grade in February 2008, under First Student, Inc., he would have continued to have received pay and all emoluments at that higher grade and rate after Durham School Services took over in July 2008.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2009.
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2017.
The Issue The issue is whether Zelma Goss should be dismissed from her position as a school bus driver for the St. Johns County School Board for the reasons stated in the Formal Petition of Charges.
Findings Of Fact Zelma Goss has been employed as a bus driver by the School Board of St. Johns County since November 1975. During that time, she has had an unblemished record of performance as a bus driver. At about 3:15 p.m. on August 27, 1990, Ms. Goss was completing her afternoon bus route when she heard Debra Sapp call for help over the radio. Ms. Sapp ordinarily does not drive a bus because she was the Route Specialist. On this day, the first day of school, Ms. Sapp had to pick up a bus load of students who had been returned to Ketterlinus Middle School because of severe misbehavior on the bus. Ms. Sapp had to stop the bus one time to separate two boys. A few minutes later the bigger boy returned to the front of the bus and began beating the smaller boy with his fists. Ms. Sapp stopped the bus and tried to stop the fight. She was unable to separate the boys, and as the beating continued she radioed for help and requested assistance from the Sheriff's Department. A couple of minutes later she again radioed for help. After there was no response from other drivers, Ms. Goss contacted Ms. Sapp and asked if she could help. After she finished her route, Ms. Goss went to the location of Ms. Sapp's bus and noticed that there were a number of school administrators and law enforcement officers present and that the students on Ms. Sapp's bus were hanging out the windows, yelling obscenities and otherwise acting completely out of control. Ms. Goss, who was familiar with these students because she had transported them during previous years, got on the bus and attempted to gain control of the students' behavior. She succeeded in calming all of the students down except Joe Bailey, who refused her directions and would not come to the front of the bus to sit. Joe Bailey was removed from the bus by a Deputy Sheriff and instructed to behave. At approximately 4:00 p.m., Ms. Sapp said that she believed that they could proceed to transport the students home and Ms. Goss volunteered to drive. Ms. Sapp went back and sat toward the back of the bus. Joe Bailey was put back on the bus by a Deputy Sheriff and instructed to behave. Ms. Goss had had problems with several of the students on the bus in the past, particularly with Joe Bailey. Ms. Goss' reporting of Bailey's misconduct had resulted in his being suspended from school in the past. The bus route continued uneventfully until Ms. Goss reached the corner of D and 5th Street, at which point the students began to stand up and holler when they saw a brown pickup truck nearby. The truck was driven by a former student, Jason Schofield, who had been a troublemaker. At this point in time, the bus was stopped at the stop Joe Bailey normally exited. Because she was keeping her eye on Mr. Schofield's truck, Ms. Goss did not notice as she pulled away from that stop that Joe Bailey had not gotten off. While she was discussing this matter with Ms. Sapp and stating that Mr. Bailey could get off at the next stop, Ms. Goss noticed Mr. Schofield's truck pulling in behind the bus, tires squealing, having come out so fast that he cut off a white car following the bus. At the next stop, Ms. Goss and Ms. Sapp told Joe Bailey several times to get off the bus. As Mr. Bailey finally moved to leave the bus, he called Ms. Goss a bitch, struck Ms. Goss firmly in the back of the head, and quickly ran off the bus. As she was struck, Ms. Goss instinctively threw up her hands in protection and noticed Bailey making obscene gestures at her and calling her names. Bailey walked in front of the bus, across the road and, standing on the left edge of the road, continued to make obscene gestures and comments at Ms. Goss and dropped his pants, "mooning" her. As she started the bus moving forward, Ms. Goss turned the steering wheel quickly to the left and then immediately back to the right in an instinctive reaction to get Bailey's attention. This movement of the steering wheel lasted approximately two seconds. At the same time, Ms. Goss was yelling out of the window to Bailey that she intended to press charges against him. Ms. Sapp described the motion of the bus by saying, "it went forward very wiggly." The bus quickly crossed the middle line by eight to ten inches and returned to the right lane. Ms. Goss did not steer the bus at Bailey, nor did she intend to strike him with the bus. Furthermore, the bus never came anywhere near hitting Bailey and did not pose any real danger to him. As Ms. Goss was continuing to the next stop, Ms. Sapp began screaming in the back of the bus, "Don't stop." Ms. Goss stopped the bus at the next stop anyway and, as she opened the door, Jason Schofield came up to the driver's window on the left hand side of the bus and began beating on the side of the bus. Schofield said to her, "Lady, what is your problem?" Ms. Goss stated that she did not have a problem and did not say anything else to him. Mr. Schofield returned to his truck and pulled out around the bus, speeding through the stop signal before all of the students had completely crossed the road in front of the bus. Ms. Goss completed the bus run and returned to where she had left her bus. In discussing the situation with representatives of the administration, Ms. Goss admitted swerving the bus, but she did not state that she had swerved the bus at Bailey or in an effort to strike Bailey. For his actions that day, Joe Bailey was expelled for the entire school year. Two students and a passenger in Schofield's truck told their versions of what occurred that day. All three were simply unbelievable and their stories were entirely lacking in credibility. Their testimony is rejected. The passenger's story is impossible and clearly false. The only two people actually on that bus who were credible witnesses were Ms. Goss and Ms. Sapp. Neither testified that Ms. Goss actually swerved the bus at Joe Bailey in any manner which placed him in any danger. St. Johns County School Baord Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows: (11) Relationship to other personnel (c) Pupils (1) The bus driver shall be responsible for the safety of the pupils on his bus and shall be constantly on the alert for any condition that would endanger their safety. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students. A bus driver's primary responsibility is to maintain the safety of the students.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order exonerating Zelma Goss from the alleged misconduct and immediately reinstating her to her position as a school bus driver. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5887 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of St. Johns County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4-6(24-26); 8(2); and 11(21). Proposed findings of fact 7, 9, 10, 12-16, 23-28, and 32 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1, 2 and 29 are unnecessary. Proposed findings of fact 17, 18, 20-22, and 30 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 19 and 31 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Zelma Goss 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2&5); and 3-17(6-20). COPIES FURNISHED: Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street Post Office Box 40089 Jacksonville, FL 32203 Thomas W. Brooks Attorney at Law Post Office Box 1547 Tallahassee, FL 32302 Otis A. Mason, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, FL 32084 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue The issues in this case are whether, as the district school board alleges, Respondent got into a scuffle with a student; and, if so, whether such conduct constitutes just cause for Petitioner's dismissing Respondent from his position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent José Lopez ("Lopez") as a bus driver, a position he has held since 2008. The events in dispute occurred on the afternoon of March 9, 2016. At the time, Lopez was working as a "spare driver," meaning that, instead of being assigned to a regular route, he drove to different locations as needed. This particular afternoon, the dispatcher directed Lopez to make a late pickup at Forest Hill Community High School ("Forest Hill") in West Palm Beach because the regular driver's bus had broken down. Lopez had some trepidation about accepting this assignment because he was familiar with the route in question and considered it dangerous due to the behavior of the students. Nevertheless, he proceeded to Forest Hill as instructed. The bus was behind schedule when Lopez arrived at the school, through no fault of his. The other busses already had pulled away, and the students waiting for Lopez's bus were standing in the road (or "bus loop" as it is called). As the bus pulled up, some students began running beside it, creating a potentially dangerous situation. The administrator on bus duty, Dr. Demetrius Permenter, ordered Lopez to drive around the loop again, so that he could get the students out of the road and under control. Lopez complied. On his second approach, Lopez parked the bus and opened the side-entry double doors, which are located at the front of the bus, opposite the driver (to his right when driving). The students jostled and pushed each other as they rushed to board the bus. Again fearing that someone might get hurt, Dr. Permenter told the students to stop boarding and——to prevent others from entering——instructed Lopez to close the doors. Lopez complied. As the doors closed, students continued to dash in, disobeying Dr. Permenter. The last student to board the bus was Michael Clark, then 17 years old. Although he had bolted inside the bus at the last second, Michael could not proceed to a seat because his arm (or the arm of his jacket) got caught between the doors as they shut, trapping him at the bottom of the interior steps. Fortunately, Michael was not hurt, which was obvious to everyone around, for he began to laugh at the somewhat comical position he had placed himself in. Others, including Dr. Permenter, chuckled too, and Lopez raised his hands, palms forward, in an exaggerated gesture of mock exasperation, before opening the doors, freeing Michael. All told, the student was stuck for about five seconds. To this point, the atmosphere had been one of energetic merriment. The students had been excited, boisterous, and generally in high spirits. But suddenly, the mood changed. As Michael climbed the steps onto the bus, he angrily demanded to know why his arm had been stuck "in the damn door so fucking long." Dr. Permenter clearly heard this disrespectful outburst and knew immediately that "some[thing] was going on." Tr. 96. Lopez thought, "Something is coming. I don't wanna do it." Tr. 335. At hearing, Dr. Permenter testified that Michael's statement could have been perceived as aggressive, Tr. 108, but he did not view it that way at the time, perhaps, in part, because he could not see Michael's face. Tr. 132. Lopez rose from his seat. Although Michael's belligerent query had not been overtly threatening, it carried an unmistakable whiff of menace——enough, clearly, to put a reasonable person on guard. Sitting behind the wheel placed Lopez in a vulnerable position vis-à-vis Michael. Therefore, rising to his feet sensibly increased Lopez's options for fight or flight, should it come to that, and reduced the risk that he would be set upon by an attacker looming over him, raining down blows. In sum, because Michael had addressed Lopez, not as an authority figure, but (at best) as a peer and possibly as prey, Lopez's decision to stand was reasonable under the circumstances. Lopez, who had stood up next to the right edge of the driver's seat, turned to his right to face Michael, who was drawing near, and asked, "What's your problem, man?" In the blink of an eye, the two began to tussle. The question at the heart of this dispute is: Who initiated the physical altercation? The District alleges that Lopez panicked and lashed out at a student merely for using foul language.1/ Lopez claims that he acted reasonably in self-defense after Michael attacked him. Accounts of the next few relevant moments differ sharply, which is par for the course. What is worse, from the fact-finder's perspective, is the thinness of the evidence. The two protagonists were the only witnesses at hearing having personal knowledge of all the relevant facts, and both were relatively inarticulate; they each gave testimony that was neither precise nor explicit. The other eyewitness, Dr. Permenter, described the events with admirable precision, as far as his testimony went, but he did not see everything and could not say whether Lopez or Michael had been the aggressor. Then there are the two surveillance videos ("3A" and "3B"), which together amount to a virtual witness who "testifies" through the sound and images recorded by the cameras mounted on the bus. Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume casually that the assertive narrative of any given video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to past events, for video merely represents, imperfectly, the real events captured on camera. Of necessity, each member of the audience projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in videos 3A and 3B based upon a critical review of the films in conjunction with a careful consideration of all the available evidence. Michael testified that after Lopez stood up, he (Lopez) reached for Michael's neck, which initiated the tussle. Video 3A persuasively rebuts Michael's testimony in this regard. Lopez clearly did not reach for Michael's neck——not right away, anyway. Unfortunately for purposes of this case, however, video 3A does not persuasively describe the entire event, as a result of the static position of the camera. Video 3A was shot by a camera mounted at the front of the bus, over the driver's left shoulder (as he faces forward). The angle of the shot gives the viewer the perspective of looking down, from the left side of the bus, onto the front inside area of the vehicle, which encompasses the driver's seat (closest to the camera); the landing at the head of the center aisle, onto which passengers step after ascending the front steps inside the vehicle; the first few rows of passenger seats; and the side-entry double doors located to the driver's right. The disputed event took place largely within sight of this camera. A major drawback of video 3A is that when Lopez stood up, his body got between the camera and Michael, giving us a good shot of Lopez's back, but blocking our view of Michael. Thus, we cannot observe which one made the first physical contact. Despite its limitations, video 3A provides much useful information. As mentioned, there is a landing at the head of the center aisle, which is adjacent to the driver's seat. The center aisle is bordered by silver edging trim (also known as transition strips). The passenger seats and the driver's seat are outside these strips. When Lopez stood and turned to face Michael (as Michael climbed the steps and approached), the driver planted his feet mostly on "his" side of the edging trim; only the toes of his shoes touched the landing. Next to his right foot was a waste basket located on the driver's side of the trim, near the driver's seat. Lopez's calves were quite close to his seat. Simply put, when Lopez stood and faced Michael, he occupied his work station. It was Michael who walked across the landing and got into Lopez's face, while Lopez was standing——literally——in his own personal space. Facing each other, the two briefly exchanged words, but the evidence is insufficient to permit the undersigned to make a finding as to what was said. During this short verbal encounter, Lopez's arms remained at his side. Also, Lopez's feet stayed on his side of the driver's area. It should be understood that, at this moment, Lopez was basically standing his ground, for he was effectively trapped. Unlike Michael, who had the freedom to exit the bus or proceed down the aisle via unobstructed paths, Lopez could not escape except by getting past Michael. For Lopez, retreat meant falling back into his driver's seat, which would have put him at a disadvantage. Video 3A shows that, as the two talked, Lopez abruptly stepped sideways and backwards on his right foot, which bumped into the waste basket. Lopez appears to be reacting to something, and has perhaps been knocked off balance, but Michael's actions cannot be made out because Lopez's body is in the way. After regaining his footing, Lopez reached forward with his right hand while leaning slightly to the right, as if he were going to embrace Michael, and took a step forward with his left foot, raising his left hand towards Michael's waist in a motion that, again, looks like the start of a hug, except that Michael's right arm would have been pinned against his body had Lopez succeeded in getting his arm around the student. Simultaneously, Michael slipped his left hand under Lopez's right arm and grabbed the driver's left shoulder, while using his right hand to take hold of Lopez's left shirt collar. Here, Michael clearly went on the offensive, driving Lopez forcefully back and pushing him into the driver's seat. Lopez got back to his feet, and Michael slammed him hard into the steering wheel and driver's seat. Lopez used his arms in an attempt to protect himself, but Michael began to overpower the driver. At about this time, Dr. Permenter entered the bus, and he reached out immediately to restrain Michael. At the same time, Lopez bounced up and managed to push Michael back a step or two, reaching unsuccessfully for his neck. At hearing, Dr. Permenter recalled that Michael seemed to calm down and stop struggling upon the administrator's arrival. Video 3A rebuts this testimony. As it actually happened, Michael advanced on Lopez and pushed the driver backwards, nearly into the steering wheel, as Dr. Permenter tugged on Michael's arm to pull him away from Lopez. In response, Lopez lunged forward and reached again with both hands for Michael's throat. The School Board uses a screenshot from video 3B capturing this moment that appears to show Lopez choking or strangling Michael. But, though arresting, this particular still is misleading because, whereas the screenshot gives the impression that Lopez had locked his hands around the student's neck, the video shows that in real time the driver's hands were actually in that visually dramatic position for just a split second before releasing. In truth, if Lopez even made contact with Michael's throat, it was an extremely brief touch. Lopez, obviously agitated, exclaimed, "Get out of here, motherfucker!" Dr. Permenter stepped between Lopez and Michael, and said, "Uh uh, let him go, let him go." Without hesitating, Dr. Permenter then threw his body into Lopez, and knocked the driver back into his seat, separating Lopez and Michael. Michael was yelling at Lopez and Dr. Permenter, but his words, as recorded on the videos, cannot be understood. With that, the altercation was over. Shortly thereafter, Michael was escorted off the bus. The District alleges that it has just cause to fire Lopez based upon the following allegations of material fact: As [Michael] was entering the bus, Mr. Lopez closed the bus doors, thereby trapping the [student] in the doors. * * * [Later, d]uring the investigation . . . , Mr. Lopez stated that he accidently closed the bus door on [Michael]. In fact, Michael did become caught in the doors by accident——an accident for which he (Michael), having disobediently boarded the bus knowing that the doors were shutting, was 100% at fault. Lopez, who had closed the doors on Dr. Permenter's order, was blameless in connection with this mishap. After several seconds, Mr. Lopez opened the door. As [Michael] walked up the steps of the bus, [he] questioned Respondent about being caught in the doors. In fact, Michael rudely barked, "Why was my arm stuck in the damn door so fucking long?" Michael was, of course, way out of line in making this menacing remark to the driver, who reasonably rose from his seat in a self-protective maneuver. Respondent is seen [in video 3A] stepping towards the victim and using his body to make contact with [Michael]. In fact, Lopez clearly stood his ground near the driver's seat. It was plainly Michael who moved toward Lopez, not the other way around. Lopez did make contact with Michael, but it is quite possible that Michael made physical contact with Lopez first. The evidence is ambiguous as to the question of whether Lopez or Michael struck first. Mr. Lopez and [Michael] engage[d] in a physical tussle, until they [we]re separated by a school staff member that boarded the bus. Once separated, Mr. Lopez again lunged at [Michael] and made physical contact with the student, which caused a second scuffle. A school staff member got between Respondent and [Michael] and broke up the altercation. Without a doubt, there was a tussle, but there was not, in fact, a "second scuffle" for which Lopez was somehow primarily responsible. The two combatants, in fact, were not actually "separated" until Dr. Permenter threw himself into Lopez and knocked the driver down. Until then, both individuals had thrust and parried with their arms, hands, and legs. During the struggle, Michael was as, if not more, aggressive than Lopez, who was, very possibly, merely defending himself, as he maintains. During the incident, Mr. Lopez used profanity. Lopez admitted this allegation, which was proved, in any event, by clear and convincing evidence, as he can be heard calling Michael a "motherfucker" in the video. The context, however, is crucial. The bad word or words were uttered by Lopez, not gratuitously, but in the heat of battle, when emotions were high and Lopez was understandably and justifiably angry at Michael. In contrast, Michael used profanity gratuitously in the absence of conflict, without justification, when he boarded the bus——far worse conduct.2/ Lopez's use of profanity, under the circumstances, was a de minimis infraction, not just cause for dismissal. The upshot is that the District failed to prove by clear and convincing evidence the essential allegation against Lopez, namely that he had initiated and escalated a physical altercation with a student. As far as establishing who the aggressor was, the evidence is ambiguous. Although Lopez did not have the burden to prove his innocence, he presented evidence sufficient to raise the genuine possibility that he had acted in self-defense, not in retaliation, using reasonable force to protect himself from harm while under attack. This genuine possibility precludes the undersigned from forming a firm belief or conviction, without hesitancy, that Lopez acted in an unjustifiably aggressive or retaliatory fashion, as charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order exonerating Lopez of all charges brought against him in this proceeding. DONE AND ENTERED this 16th day of March, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2017.
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
