The Issue The issues in this case are whether, as the district school board alleges, Respondent got into a scuffle with a student; and, if so, whether such conduct constitutes just cause for Petitioner's dismissing Respondent from his position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent José Lopez ("Lopez") as a bus driver, a position he has held since 2008. The events in dispute occurred on the afternoon of March 9, 2016. At the time, Lopez was working as a "spare driver," meaning that, instead of being assigned to a regular route, he drove to different locations as needed. This particular afternoon, the dispatcher directed Lopez to make a late pickup at Forest Hill Community High School ("Forest Hill") in West Palm Beach because the regular driver's bus had broken down. Lopez had some trepidation about accepting this assignment because he was familiar with the route in question and considered it dangerous due to the behavior of the students. Nevertheless, he proceeded to Forest Hill as instructed. The bus was behind schedule when Lopez arrived at the school, through no fault of his. The other busses already had pulled away, and the students waiting for Lopez's bus were standing in the road (or "bus loop" as it is called). As the bus pulled up, some students began running beside it, creating a potentially dangerous situation. The administrator on bus duty, Dr. Demetrius Permenter, ordered Lopez to drive around the loop again, so that he could get the students out of the road and under control. Lopez complied. On his second approach, Lopez parked the bus and opened the side-entry double doors, which are located at the front of the bus, opposite the driver (to his right when driving). The students jostled and pushed each other as they rushed to board the bus. Again fearing that someone might get hurt, Dr. Permenter told the students to stop boarding and——to prevent others from entering——instructed Lopez to close the doors. Lopez complied. As the doors closed, students continued to dash in, disobeying Dr. Permenter. The last student to board the bus was Michael Clark, then 17 years old. Although he had bolted inside the bus at the last second, Michael could not proceed to a seat because his arm (or the arm of his jacket) got caught between the doors as they shut, trapping him at the bottom of the interior steps. Fortunately, Michael was not hurt, which was obvious to everyone around, for he began to laugh at the somewhat comical position he had placed himself in. Others, including Dr. Permenter, chuckled too, and Lopez raised his hands, palms forward, in an exaggerated gesture of mock exasperation, before opening the doors, freeing Michael. All told, the student was stuck for about five seconds. To this point, the atmosphere had been one of energetic merriment. The students had been excited, boisterous, and generally in high spirits. But suddenly, the mood changed. As Michael climbed the steps onto the bus, he angrily demanded to know why his arm had been stuck "in the damn door so fucking long." Dr. Permenter clearly heard this disrespectful outburst and knew immediately that "some[thing] was going on." Tr. 96. Lopez thought, "Something is coming. I don't wanna do it." Tr. 335. At hearing, Dr. Permenter testified that Michael's statement could have been perceived as aggressive, Tr. 108, but he did not view it that way at the time, perhaps, in part, because he could not see Michael's face. Tr. 132. Lopez rose from his seat. Although Michael's belligerent query had not been overtly threatening, it carried an unmistakable whiff of menace——enough, clearly, to put a reasonable person on guard. Sitting behind the wheel placed Lopez in a vulnerable position vis-à-vis Michael. Therefore, rising to his feet sensibly increased Lopez's options for fight or flight, should it come to that, and reduced the risk that he would be set upon by an attacker looming over him, raining down blows. In sum, because Michael had addressed Lopez, not as an authority figure, but (at best) as a peer and possibly as prey, Lopez's decision to stand was reasonable under the circumstances. Lopez, who had stood up next to the right edge of the driver's seat, turned to his right to face Michael, who was drawing near, and asked, "What's your problem, man?" In the blink of an eye, the two began to tussle. The question at the heart of this dispute is: Who initiated the physical altercation? The District alleges that Lopez panicked and lashed out at a student merely for using foul language.1/ Lopez claims that he acted reasonably in self-defense after Michael attacked him. Accounts of the next few relevant moments differ sharply, which is par for the course. What is worse, from the fact-finder's perspective, is the thinness of the evidence. The two protagonists were the only witnesses at hearing having personal knowledge of all the relevant facts, and both were relatively inarticulate; they each gave testimony that was neither precise nor explicit. The other eyewitness, Dr. Permenter, described the events with admirable precision, as far as his testimony went, but he did not see everything and could not say whether Lopez or Michael had been the aggressor. Then there are the two surveillance videos ("3A" and "3B"), which together amount to a virtual witness who "testifies" through the sound and images recorded by the cameras mounted on the bus. Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume casually that the assertive narrative of any given video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to past events, for video merely represents, imperfectly, the real events captured on camera. Of necessity, each member of the audience projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in videos 3A and 3B based upon a critical review of the films in conjunction with a careful consideration of all the available evidence. Michael testified that after Lopez stood up, he (Lopez) reached for Michael's neck, which initiated the tussle. Video 3A persuasively rebuts Michael's testimony in this regard. Lopez clearly did not reach for Michael's neck——not right away, anyway. Unfortunately for purposes of this case, however, video 3A does not persuasively describe the entire event, as a result of the static position of the camera. Video 3A was shot by a camera mounted at the front of the bus, over the driver's left shoulder (as he faces forward). The angle of the shot gives the viewer the perspective of looking down, from the left side of the bus, onto the front inside area of the vehicle, which encompasses the driver's seat (closest to the camera); the landing at the head of the center aisle, onto which passengers step after ascending the front steps inside the vehicle; the first few rows of passenger seats; and the side-entry double doors located to the driver's right. The disputed event took place largely within sight of this camera. A major drawback of video 3A is that when Lopez stood up, his body got between the camera and Michael, giving us a good shot of Lopez's back, but blocking our view of Michael. Thus, we cannot observe which one made the first physical contact. Despite its limitations, video 3A provides much useful information. As mentioned, there is a landing at the head of the center aisle, which is adjacent to the driver's seat. The center aisle is bordered by silver edging trim (also known as transition strips). The passenger seats and the driver's seat are outside these strips. When Lopez stood and turned to face Michael (as Michael climbed the steps and approached), the driver planted his feet mostly on "his" side of the edging trim; only the toes of his shoes touched the landing. Next to his right foot was a waste basket located on the driver's side of the trim, near the driver's seat. Lopez's calves were quite close to his seat. Simply put, when Lopez stood and faced Michael, he occupied his work station. It was Michael who walked across the landing and got into Lopez's face, while Lopez was standing——literally——in his own personal space. Facing each other, the two briefly exchanged words, but the evidence is insufficient to permit the undersigned to make a finding as to what was said. During this short verbal encounter, Lopez's arms remained at his side. Also, Lopez's feet stayed on his side of the driver's area. It should be understood that, at this moment, Lopez was basically standing his ground, for he was effectively trapped. Unlike Michael, who had the freedom to exit the bus or proceed down the aisle via unobstructed paths, Lopez could not escape except by getting past Michael. For Lopez, retreat meant falling back into his driver's seat, which would have put him at a disadvantage. Video 3A shows that, as the two talked, Lopez abruptly stepped sideways and backwards on his right foot, which bumped into the waste basket. Lopez appears to be reacting to something, and has perhaps been knocked off balance, but Michael's actions cannot be made out because Lopez's body is in the way. After regaining his footing, Lopez reached forward with his right hand while leaning slightly to the right, as if he were going to embrace Michael, and took a step forward with his left foot, raising his left hand towards Michael's waist in a motion that, again, looks like the start of a hug, except that Michael's right arm would have been pinned against his body had Lopez succeeded in getting his arm around the student. Simultaneously, Michael slipped his left hand under Lopez's right arm and grabbed the driver's left shoulder, while using his right hand to take hold of Lopez's left shirt collar. Here, Michael clearly went on the offensive, driving Lopez forcefully back and pushing him into the driver's seat. Lopez got back to his feet, and Michael slammed him hard into the steering wheel and driver's seat. Lopez used his arms in an attempt to protect himself, but Michael began to overpower the driver. At about this time, Dr. Permenter entered the bus, and he reached out immediately to restrain Michael. At the same time, Lopez bounced up and managed to push Michael back a step or two, reaching unsuccessfully for his neck. At hearing, Dr. Permenter recalled that Michael seemed to calm down and stop struggling upon the administrator's arrival. Video 3A rebuts this testimony. As it actually happened, Michael advanced on Lopez and pushed the driver backwards, nearly into the steering wheel, as Dr. Permenter tugged on Michael's arm to pull him away from Lopez. In response, Lopez lunged forward and reached again with both hands for Michael's throat. The School Board uses a screenshot from video 3B capturing this moment that appears to show Lopez choking or strangling Michael. But, though arresting, this particular still is misleading because, whereas the screenshot gives the impression that Lopez had locked his hands around the student's neck, the video shows that in real time the driver's hands were actually in that visually dramatic position for just a split second before releasing. In truth, if Lopez even made contact with Michael's throat, it was an extremely brief touch. Lopez, obviously agitated, exclaimed, "Get out of here, motherfucker!" Dr. Permenter stepped between Lopez and Michael, and said, "Uh uh, let him go, let him go." Without hesitating, Dr. Permenter then threw his body into Lopez, and knocked the driver back into his seat, separating Lopez and Michael. Michael was yelling at Lopez and Dr. Permenter, but his words, as recorded on the videos, cannot be understood. With that, the altercation was over. Shortly thereafter, Michael was escorted off the bus. The District alleges that it has just cause to fire Lopez based upon the following allegations of material fact: As [Michael] was entering the bus, Mr. Lopez closed the bus doors, thereby trapping the [student] in the doors. * * * [Later, d]uring the investigation . . . , Mr. Lopez stated that he accidently closed the bus door on [Michael]. In fact, Michael did become caught in the doors by accident——an accident for which he (Michael), having disobediently boarded the bus knowing that the doors were shutting, was 100% at fault. Lopez, who had closed the doors on Dr. Permenter's order, was blameless in connection with this mishap. After several seconds, Mr. Lopez opened the door. As [Michael] walked up the steps of the bus, [he] questioned Respondent about being caught in the doors. In fact, Michael rudely barked, "Why was my arm stuck in the damn door so fucking long?" Michael was, of course, way out of line in making this menacing remark to the driver, who reasonably rose from his seat in a self-protective maneuver. Respondent is seen [in video 3A] stepping towards the victim and using his body to make contact with [Michael]. In fact, Lopez clearly stood his ground near the driver's seat. It was plainly Michael who moved toward Lopez, not the other way around. Lopez did make contact with Michael, but it is quite possible that Michael made physical contact with Lopez first. The evidence is ambiguous as to the question of whether Lopez or Michael struck first. Mr. Lopez and [Michael] engage[d] in a physical tussle, until they [we]re separated by a school staff member that boarded the bus. Once separated, Mr. Lopez again lunged at [Michael] and made physical contact with the student, which caused a second scuffle. A school staff member got between Respondent and [Michael] and broke up the altercation. Without a doubt, there was a tussle, but there was not, in fact, a "second scuffle" for which Lopez was somehow primarily responsible. The two combatants, in fact, were not actually "separated" until Dr. Permenter threw himself into Lopez and knocked the driver down. Until then, both individuals had thrust and parried with their arms, hands, and legs. During the struggle, Michael was as, if not more, aggressive than Lopez, who was, very possibly, merely defending himself, as he maintains. During the incident, Mr. Lopez used profanity. Lopez admitted this allegation, which was proved, in any event, by clear and convincing evidence, as he can be heard calling Michael a "motherfucker" in the video. The context, however, is crucial. The bad word or words were uttered by Lopez, not gratuitously, but in the heat of battle, when emotions were high and Lopez was understandably and justifiably angry at Michael. In contrast, Michael used profanity gratuitously in the absence of conflict, without justification, when he boarded the bus——far worse conduct.2/ Lopez's use of profanity, under the circumstances, was a de minimis infraction, not just cause for dismissal. The upshot is that the District failed to prove by clear and convincing evidence the essential allegation against Lopez, namely that he had initiated and escalated a physical altercation with a student. As far as establishing who the aggressor was, the evidence is ambiguous. Although Lopez did not have the burden to prove his innocence, he presented evidence sufficient to raise the genuine possibility that he had acted in self-defense, not in retaliation, using reasonable force to protect himself from harm while under attack. This genuine possibility precludes the undersigned from forming a firm belief or conviction, without hesitancy, that Lopez acted in an unjustifiably aggressive or retaliatory fashion, as charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order exonerating Lopez of all charges brought against him in this proceeding. DONE AND ENTERED this 16th day of March, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2017.
The Issue Whether the Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges filed January 10, 2002, and whether the Respondent should be dismissed from her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes. Background Ms. Delice was employed by the School Board as a school bus driver trainee in May 1997. She successfully completed her training and was duly placed on permanent status as a bus driver for the Miami-Dade County school system. Ms. Delice is a member of the American Federation of State, County, and Municipal Employees, Local 1184, and she is subject to the Contract Between the Miami-Dade County Public School and the American Federation of State, County, and Municipal Employees, Local 1184, effective from July 1, 2000, through June 30, 2003 ("Union Contract"). In 1998, when Ms. Delice was working at the School Board's Southern Regional Transportation Center, she came to know Rhonda Ferguson, another bus driver working at this facility. Ms. Ferguson began making overtures to Ms. Delice, asking for her phone number and generally acting, in Ms. Delice's estimation, like a co-worker who wanted to become friends. A co-worker who had overheard a conversation between Ms. Delice and Ms. Ferguson told Ms. Delice that Ms. Ferguson was a lesbian. Ms. Delice became very upset, and, even though Ms. Ferguson had never made any physical or overt verbal advances, Ms. Delice concluded that Ms. Ferguson was harassing her and that she was being subjected to working in a "hostile environment." Ms. Delice told Ms. Ferguson to leave her alone, but she did not complain to her supervisors that, in her estimation, Ms. Ferguson was bothering her. Ms. Delice was subsequently transferred to the Southwest Regional Transportation Center ("the Southwest facility"), and, about eight months later, Ms. Ferguson was transferred to the Southwest facility as well. A co-worker told Ms. Delice that Ms. Ferguson was spreading stories about Ms. Delice to the effect that the two women were having an affair. On January 20, 1999, Ms. Delice confronted Ms. Ferguson in the workplace, and the two women became involved in a verbal and physical altercation. After the altercation, Ms. Delice was temporarily transferred to the Central West Regional Transportation Center ("the Central West facility"). An investigation was conducted, and the charges against Ms. Delice and Ms. Ferguson were substantiated. Although a 30-day suspension without pay was the recommended discipline, it was finally decided that Ms. Delice and Ms. Ferguson would be permanently assigned to the location of their alternate assignments. Accordingly, Ms. Delice was permanently transferred to the Central West facility in February 1999. Although Ms. Delice knew she was "somewhat" emotionally affected by the advances of Ms. Ferguson, it was the transfer to the Central West facility that "turned her whole life upside down."1 Ms. Delice was distressed at the condition of the physical plant at the Central West facility, and she described it as a "boot camp." Ms. Delice complained that the road leading into the facility was narrow and very dark, with rocks on one side and a lake on the other; that the location was unsafe; that there were potholes in the gravel lots where the buses were kept; that the gravel lots turned to mud when it rained and were very dusty when it was dry; that the lighting was non-existent; that she was required to park in the employee parking lot and walk a half-block to the office to pick up her bus assignment and another half-block to her bus, often in the mud; that there were mosquitoes and frogs on the buses, and she had to be careful not to sit on a frog; and that something, maybe asbestos, was coming out of the walls of the employee break room. Ms. Delice blames Ms. Ferguson for her transfer to the Central West facility, and she thinks that she should have been disciplined for the altercation in January 1999 rather than transferred to the Central West facility. Finally, Ms. Delice called Barbara Moss, a District Director of the School Board's Office of Professional Standards, and asked if she could be transferred back to the Southwest facility. Ms. Delice told Ms. Moss that she had transportation problems because she drove an old car that was always breaking down because of the bad roads at the Central West facility and that the Southwest facility was closer to Ms. Delice's home than the Central West facility. Ms. Moss secured a transfer for Ms. Delice back to the Southwest facility, effective in March 2000. Ms. Delice did not mention any emotional problems, stress, or poor working conditions to Ms. Moss. Ms. Delice worked at the Southwest facility until she was suspended by the School Board on October 24, 2001, pending initiation of dismissal proceedings. Absences Each year, school bus drivers receive a copy of the Handbook for School Bus Drivers, Aides and Operations Staff ("Handbook"), and Ms. Delice's supervisor at both the Central West facility and the Southwest facility went over the Handbook with employees at the beginning of each school year. Section 9 of the Handbook describes in detail the attendance policy for transportation employees. A bus driver working for the School Board accrues a total of ten days combined paid sick and personal leave each school year. Between December 1, 1999, and June 1, 2000, Ms. Delice took 64 days of unauthorized leave without pay, 11.5 days of authorized leave without pay, and six days of paid sick/personal leave. Between August 28, 2000, and June 13, 2001, Ms. Delice took 26.5 days of unauthorized leave without pay, 21 days of authorized leave without pay, and ten days of paid sick/personal leave. Ms. Delice was absent without authorization on three consecutive workdays on January 17, 18, and 19, 2001; February 1, 2, 5 and 6, 2001; and May 30 and 31 and June 1, 2001. Between August 28, 2001, and October 24, 2001, the date of her suspension, Ms. Delice had three days of unauthorized leave without pay, one day of authorized leave without pay, and seven days of paid sick/personal leave. Between August 28, 2001, and October 10, 2001, the date Ms. Delice was advised that the superintendent was recommending her termination, Ms. Delice took six days of paid sick/personal leave, but no days of either authorized or unauthorized leave without pay. Reminders and Conferences for the Record On October 25, 1999, Michael Exelbert, a coordinator at the Central West facility, issued to Ms. Delice a Notice of Performance Expectation Requirement, Attendance (Follow-Up Verbal), in which Ms. Delice was issued a verbal reminder of her responsibilities with respect to attendance. She was referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On December 8, 1999, Mary Murphy, the Director of the Central West facility, issued to Ms. Delice a Notice of Performance Expectation/Requirement, in which Ms. Delice was again reminded of the expectation regarding attendance, specifically with respect to her being absent without leave after not calling or showing up for work on November 15, 17, and 23, 1999. Ms. Delice was again referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On February 7, 2000, Mr. Exelbert conducted a Conference for the Record with respect to Ms. Delice's "no call/no show" absences without leave on September 13, 15, 19, and 21, 1999; November 15, 17, and 23, 1999; December 16, 1999; and January 3, 2000. As set forth in the summary of the conference, Ms. Delice explained her absences as follows: "You indicated that you had had car problems, had a problem with the staff in Dispatch, and that every once in a while you needed a day off." As a result of documentation provided by Ms. Delice, September 19 and November 23, 1999, were removed as absences without leave. Ms. Delice was referred to Section 9 of the transportation employee's Handbook for the applicable attendance policy. On June 1, 2000, after her March 2000 transfer to the Southwest facility, a Conference for the Record was conducted by Aned Lamboglia, a coordinator at the Southwest facility, with respect to Ms. Delice's unauthorized absences subsequent to September 1, 1999. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified 53.5 days of unauthorized leave without pay, 11 days of authorized leave without pay, and six days of paid sick/personal leave between September 1, 1999, and June 1, 2000; Ms. Lamboglia also noted that Ms. Delice had missed "at least" 10.5 days of work since she was transferred to the Southwest facility in March 2000. As set forth in the summary of the June 1, 2000, conference, Ms. Delice explained her absences as follows: You stated that some of your unauthorized absences were due to the fact that you had serious transportation problems. You were administratively transferred to Central West Transportation and this had caused a serious hardship for you since the vehicle you drove kept breaking down. You also stated that you were not aware that you could provide documentation for authorization of leave time when you did not have sick or personal time. Ms. Lamboglia advised Ms. Delice during the conference that her attendance record was unsatisfactory, and she reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract. She also advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. On June 1, 2000, Ms. Lamboglia also referred Ms. Delice to the School Board's Employee Assistance Program ("EAP"). Ms. Lamboglia received notification from the clinical coordinator of the EAP, dated July 21, 2000, that Ms. Delice's case had been closed after Ms. Delice failed to attend a scheduled conference and denied that she had any job performance problems. On October 25, 2000, Ms. Lamboglia, then Mrs. Candales, conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to June 1, 2000. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified four and one-half days of unauthorized leave without pay, with two and one-half days of the total occurring during the new school year. According to the summary of the conference, Ms. Delice had nothing to say regarding these absences. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. In light of her June 1, 2000, referral of Ms. Delice to the EAP, Ms. Candales did not make a referral after the October 25, 2000, conference. On April 23, 2001, Mrs. Candales conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to October 25, 2001. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified approximately 18 days of unauthorized leave without pay. According to the summary of the conference, Ms. Delice explained her unauthorized absences by stating that she continued to experience car problems. Ms. Delice provided Mrs. Candales with documentation, and Mrs. Candales agreed to authorize four days of the 18 days of leave without pay. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that her absences were excessive under Article XI, Section 4, of the Union Contract and could lead to disciplinary action such as termination or non-reappointment. In addition, Ms. Candales referred Ms. Delice to the EAP on April 23, 2001. On June 8, 2001, Ms. Murphy, who had transferred from the Central West facility and was Director of the Southwest facility, conducted a Conference for the Record with respect to Ms. Delice's job performance in the area of attendance. Ms. Murphy noted that Ms. Delice had accumulated 25.5 days of unauthorized leave without pay since the beginning of the school year. According to the summary of the conference, Ms. Delice gave the following explanation: You mentioned during the conference that sometimes your car breaks down and you cannot make it to work. Also, if you are not feeling well you do not come to work. You are currently participating with the District Support Agency, and you are waiting for Mr. Portier to send you to a psychiatrist. You stated that you requested to see a psychiatrist because of the conditions at Central West Transportation. According to you, you began to have attendance problems when you were transferred to "Boot Camp": A.K.A., Central West Transportation. Being at this location caused you to have emotional stress. Prior to going to Central West Transportation, you did not have an attendance problem. You explained that during 1997 through 1999, you did not have an attendance problem. . . . You also mentioned that Mr. Portier's services did not meet your problem because your problems were financial. Ms. Murphy reviewed with Ms. Delice Article XI, Section 4(B) of the Union Contract, which provides that unauthorized absences for three consecutive workdays or for ten days during the previous 12-month period were grounds for termination. Ms. Delice was advised that a copy of the summary of the conference would be sent to the Administrative Director, Jerry Klein, and to the Office of Professional Standards for review and possible disciplinary action. In a memorandum dated June 20, 2001, Mr. Klein recommended to Ms. Moss at the Office of Professional Standards that Ms. Delice be dismissed from her employment with the School Board because she had "accumulated 25.5 days of unauthorized leave without pay." On July 23, 2001, Ms. Moss conducted a Conference for the Record with respect to Ms. Delice's "excessive absenteeism; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves." Ms. Delice's record was reviewed, and her future employment status with the School Board was discussed. Ms. Moss identified total absences between September 1, 2000, and June 8, 2001, of 54.5 days, consisting of 23 days of unauthorized leave without pay, 21.5 days of authorized leave without pay, six personal, and four sick days. According to the summary of the conference, Ms. Delice explained her unauthorized absences as follows: "'My problem with attendance started when I was sent to the 'boot camp' at Central West Transportation. That center is very depressing and dusty.'" In response to the observation that the purpose of the conference was to discuss Ms. Delice's attendance problem at the Southwest facility, Ms. Delice replied: "'I'm just getting over the conditions I was subjected to at Central West Transportation. I feel that I am not being given a chance to improve.'" Ms. Delice was advised that, once a review of the relevant materials was completed, she would be notified of the recommended disciplinary action. Ms. Moss further advised Ms. Delice that "[a]ll disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record." Ms. Delice was referred through the EAP to Dr. Lynne Schettino, a psychologist. Dr. Schettino initially assessed Ms. Delice on August 17, 2001, and Dr. Schettino saw her in individual sessions on August 28, 2001, and September 11, 2001; Ms. Delice cancelled two additional scheduled appointments with Dr. Schettino and did not reschedule. Ms. Delice identified absenteeism as a major problem, attributing it to "a transfer to another location [that] had been very stressful for her and that this resulted in significant anxiety, depression and avoidant behavior."2 Dr. Schettino determined that Ms. Delice's treatment should focus on coping with work stressors and developing interpersonal skills "to allow appropriate adjustment to the work place,"3 but Dr. Schettino did not have time to reach a diagnosis or develop a treatment plan for Ms. Delice. Ms. Delice entered into a "contract" with Dr. Schettino regarding her attendance, and, although she took six days of sick/personal leave between August 28, 2001, and October 10, 2001, Ms. Delice had no days of authorized or unauthorized leave without pay. In a letter dated October 10, 2001, Ms. Delice was notified by the Superintendent that he was recommending to the School Board that she be suspended from her employment and dismissal proceedings initiated against her for just cause, including but not limited to: excessive absenteeism; abandonment of position; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-3E- 1.10, Transportation-Specific Procedures (Attendance Policy); 6Gx13-4A-1.12, Responsibilities and Duties; 6Gx13-4E-1.01, Absences and Leaves." The Superintendent also noted that the dismissal recommendation was taken in accordance with, among other things, Article XI, Section 4(B) and (C), of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Elza Delice guilty of abandonment of position and excessive absenteeism, sustaining her suspension effective October 24, 2001, and terminating her employment. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2002.
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
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent committed any of the offenses alleged in Petitioner's Amended Administrative Complaint; and, if so, what is the appropriate penalty to be imposed against her Florida Educator's Certificate.
Findings Of Fact Petitioner, as Commissioner of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educational certificate and are alleged to have violated provisions of section 1012.795, Florida Statutes, and related rules. Respondent holds Florida Educator's Certificate 892498, covering the areas of biology and reading, which is valid through June 30, 2016. At the time of the final hearing, Respondent taught for the Palm Beach County School District for 16 years. At all times pertinent hereto, Respondent was employed as a science teacher at John Leonard High School. There are three incidents that serve as the basis for the Complaint. The first incident concerned Respondent's physical confrontation with L.P., a tenth-grade female student, on December 15, 2011. Respondent pinned L.P. against the hallway wall before grabbing the hood of her sweatshirt (hoodie) and forcibly slinging her back into the classroom. The second incident occurred on or about September 19, 2012, which involved Respondent's inappropriate conduct with F.M., a 17-year-old student. The third incident occurred the same day when, following the F.M. incident, Respondent threatened the students who witnessed the incident with a failing grade if they reported her misconduct. L.M. Incident C.S., a then 16-year-old female student, was in Mr. Palmberg's science class on December 15, 2011. The teacher was absent for the week, and the class required an aide. C.S. and another student, K.D., went to locate an aide for the class. Walking down the hallway, they encountered Respondent, who had a female student, L.P., backed against the hallway wall next to the classroom door. Respondent was screaming in L.P.'s face. L.P. appeared frightened and looked towards C.S. causing Respondent to put her finger on L.P.'s neck and scream, "Look at me." C.S. and K.D. went upstairs for a moment, but returned shortly thereafter. Respondent and L.P. were still in the hall. L.P. was wearing a hoodie. Respondent grabbed L.P.'s jacket by the hood and slung her into the classroom so hard that L.P. stumbled and caught herself from falling. C.S., who credibly testified at the hearing about this event, gave a written statement on January 12, 2012, to the district investigator along with K.D., N.H. (a student), and S.S. (a student). On this same date, L.P. also gave a written statement to the district detailing this interaction with Respondent. The student statements, other than that of C.S., although hearsay, are relevant because they corroborate C.S.'s hearing testimony. The minor inconsistencies between these reports and C.S.'s testimony at hearing are consistent with discrepancies commonly found in eyewitness reports of events that occurred quickly and over five years ago. Respondent's argument,2/ that C.S. testified about an incident which occurred January 12, 2012, rather than on December 15, 2011, is specious at best and casts serious doubt on Respondent's credibility. Although the written statements were provided on January 12, 2012, it is clear they all described an incident which occurred on December 15, 2011, before the winter break. These statements were authored during an investigation into a separate incident between Respondent and L.P. which occurred on January 11, 2012, in which Respondent is alleged to have improperly touched L.P. while arguing about L.P.'s cell phone.3/ The fact that counsel for Petitioner mentioned the January 12, 2012, date when questioning C.S. does not diminish C.S.'s credibility. The undersigned credits the written statements of C.S., K.D., N.H., S.S., and L.P. regarding the timing and events of the December 15, 2011, hallway incident. Respondent admits she had a loud altercation with L.P. on December 15, 2011, however, she disputes pushing L.P. against the wall, touching her, or slinging her into the classroom by her hoodie. Respondent claims L.P. became loud and disruptive when Respondent refused to allow L.P. to go to the front office to meet with her probation officer. Respondent asserts that her testimony was corroborated by fellow Teacher Antoinette Hornyak. Although Ms. Horynak heard a loud commotion between Respondent and L.P. in the hallway and described the student as loud and agitated, she testified it appeared that Respondent had the situation under control and that she did not open the door to find out what was going on. She returned her attention to her class while Respondent and L.P. remained in the hall. Accordingly, she could not know whether Respondent put her finger on L.P.'s neck or slung her into the classroom by her hoodie. The fact that L.P. was loud or belligerent leaving the classroom with Respondent is not relevant to whether Respondent engaged in the behavior described by L.P., C.S., N.H., S.S., and K.D. Further, Respondent's theory that the students concocted this story after the fact because they were "friends," is not viable. At the final hearing, C.S. could not recall the name, race, hairstyle, or any other detail about L.P., which is not surprising because the incident occurred six years prior. Other than N.H., the other witnesses described L.P. as "the girl" or the "female student." It is clear that they barely knew each other, which may explain why they waited until the investigation into the January 11, 2012, touching incident before providing a written report. There is no believable explanation for five similar statements to be provided by students who do not know each other very well about the same hallway incident unless it, in fact, occurred. Although Respondent tries to portray L.P. as an out-of-control, belligerent aggressor, Respondent did not send L.P. to the office or call for assistance. Respondent's explanation simply is not credible.4/ Respondent was given a Written Notation of a Verbal Reprimand for her inappropriate verbal and physical interaction with L.P. F.M. Incident and Failing Grade Threat F.M. was a student in Respondent's science class on September 19, 2012, when Respondent became angry because F.M. refused to straighten papers on her desk. When F.M. stated he did not create the mess, Respondent told him to get out of the class. F.M. tried to sit down on a stool near the classroom door, but Respondent called him an idiot and pulled it out from under him. She then pushed and kneed him out the door, before slamming the door. Two students, T.C. and J.V., who testified at the hearing, stated F.M. asked if an administrator was coming to the classroom, but Respondent refused to contact the office. Both students verified Respondent's inappropriate actions with F.M. J.V. described F.M. as "calm" and Respondent as "just mad." Robin Burke, who is a 25-year educator with the district, had several of these students in her math class. The day following the incident, T.C., one of her students, along with J.V. and K.D., approached her to request information on a schedule change out of Respondent's science class. When prompted, they described Respondent's inappropriate interaction with F.M. the previous afternoon. They related that Respondent called F.M. an idiot, before grabbing his shirt and shaking, pulling, and pushing him. Respondent also called F.M. a "dumbass." He was ordered to leave the room, which he refused. Respondent then kneed and kicked him out of the room. These three students also told Ms. Burke that after literally kicking F.M. from the classroom, Respondent told the remaining students that they would likely be interviewed, after which she would be shown the statements with the students' names. Respondent threatened to fail any student who gave a statement regarding her altercation with F.M. Later that day, F.M. came to Ms. Burke's sixth-hour class. He had not told either his mother or any administrator about Respondent's actions. Ms. Burke questioned him about the incident and told him to inform his mother. Ms. Burke, believing this activity by Respondent was child endangerment and her own license could be at risk if not reported properly, then took F.M. to Valerie Silverman, the assistant principal, who had Ms. Burke file a complaint against Respondent with the Department of Children and Families. When speaking with Ms. Silverman, F.M. was very upset. F.M.'s mother was notified, and he was removed from Respondent's class. Respondent was later issued a written reprimand for her physical altercation with F.M. and for calling him names. Respondent admits that she was engaged in an altercation with F.M. on September 19, 2012, but denies calling him names or physically touching him. Respondent also denied threatening student witnesses to the event with failing grades. According to Respondent, F.M. was angry because Respondent made him take a test although he had been absent for several days. When turning in his paper, he threw it on Respondent's desk, causing the stack of papers to scatter. According to Respondent, when Respondent asked him to straighten the papers, F.M. became loud and argumentative. Respondent then asked F.M. to exit the classroom, but he did not want to. F.M. asked to have an administrator called to remove him from the room. According to Respondent, things escalated quickly, and she and F.M. had a "tussle" at the door. However, Respondent asserts that she was five months pregnant at the time with a high-risk pregnancy and would not have gotten into a physical confrontation with F.M. who was bigger than she. The testimony of T.C. and J.V. was clear and convincing that the incident with F.M. occurred as they described. Again, the minor variation between their testimony and written statements can be attributed to the passage of time since the incident. Both of these former students are now in their early 20s and have no apparent reason to fabricate their recollection of the events in question. Further, both students were adamant and credible that the class was threatened by Respondent with failing grades if they provided statements about what they saw. J.V. explained that he gave a verbal statement to the officer investigating (which was then written by the investigator) because he was already failing the class and was afraid of Respondent's retaliation. Their version of what occurred is consistent with their written statements, the verbal reports they provided to Ms. Burke, and with the written statements of other students who were present, including F.M., K.J., C.S., and T.O. The students' version of what occurred between F.M. and Respondent is the only one which explains why three students would seek a class transfer the following day. Accordingly, their testimony is credited and that of Respondent is not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order placing a written reprimand in Respondent's certification file and placing Respondent on one school year of probation (180 days). It is also RECOMMENDED that Respondent be responsible for the payment of monitoring costs in the amount of $150.00. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2017.
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
