The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, 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 Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue addressed in this proceeding is whether Respondents committed any acts which would subject them to termination of employment or disciplinary action.
Findings Of Fact Bettye Gates has been employed by the Bay County School Board since 1983. Ms. Gates was employed as a bus driver from 1983 through 1984. In 1985, Ms. Gates was promoted to District Route Specialist and worked in the Transportation Department's office. In that capacity, She supervised the bus drivers. However, she did not have any responsibility for travel vouchers and their reimbursement. In 1987, because Ms. Gates did not like her new job, she elected to transfer back to being a bus driver. Ms. Gates has maintained her position as a bus driver through the present time. Since 1983, Ms. Gates has had only two or three overnight field trips in her capacity as a bus driver. None of these trips were similar enough to the overnight field trip in this case to permit any inferences as to Ms. Gates' knowledge or intent in regards to her alleged attempts to improperly seek reimbursement for travel expenses she did not incur. Shelby Finch has been employed by the Bay County School Board since 1987. She was employed as a bus driver. Ms. Finch has maintained that position through the present time. She had not participated in any overnight field trips prior to the overnight field trip involved in this case. She, therefore, had no experience regarding reimbursement procedures for such trips. /1 Ms. Gates' employment extended back to a time period during which Malcolm Murphy was the Supervisor of Transportation and supervised the bus drivers. During that time period, several bus drivers slept in their buses on overnight field trips. Mr. Murphy did not like bus drivers sleeping on their buses and instituted a policy that bus drivers had to stay in motel rooms or with friends when on overnight trips. In order to insure compliance with his policy, Mr. Murphy required that bus drivers bring back a receipt or some type of evidence that they had in fact stayed in a motel room and the time period during which they had stayed. This new policy and its requirements were communicated to all the bus drivers in a meeting held in early 1980. Since the time of Mr. Murphy's policy, other administrators have come and gone in the Bay County School System. The current supervisor is Leonard Conway. Mr. Conway never instituted a policy similar to Mr. Murphy's. He was never even aware of such a policy. More importantly, however, for purposes of examining the intent of Respondents, Mr. Murphy's policy was never rescinded during any of the later administrations, including Mr. Conway's administration. As far as the bus drivers were concerned and these particular Respondents were concerned, Mr. Murphy's policy was still in full force and effect. The Bay County School Board maintains a system of employee reimbursement for expenses incurred by an employee on behalf of the school system. There are two types of reimbursement plans which can be requested. The two plans are known as per diem reimbursement and expenses reimbursements. Per diem reimbursement reimburses the employee at a flat per day rate. The rate varies according to the amount of time the employee is away from his or her base of employment. Expenses reimbursement reimburses the employee for the actual expenses incurred while away from his or her base of employment. Per diem reimbursement does not require receipts to be submitted to obtain the reimbursement. 2 Expenses reimbursement does generally require receipts to be submitted for reimbursement. The reimbursement plan which nets the employee the most money is the one which the School Board follows for payment of the employee. In order to claim reimbursement for travel expenses, each bus driver, prior to going on an out of town field trip, fills out a Temporary Duty Assignment (TDY) form. Each driver fills out only a portion of the TDY form. The portion the driver completes includes a decision as to whether the driver intends to claim reimbursement for actual expenses or per diem expenses. When the driver returns from the out of town trip, the driver fills out a travel reimbursement voucher. Again the driver only fills out a portion of the reimbursement voucher. In essence, the driver fills in the dates, times and destination of travel and signs the form essentially in blank. These forms are physically located in the hallway outside the Transportation office. The directions for filling out these forms are also located in this hallway. However, because there is a general belief in the Transpotation Department's office that the bus drivers are incapable of understanding the expense forms or the travel policies, the Transportation Department has essentially remove the bus drivers from direct responsibility for properly filling out these travel forms and has placed that responsibility in an overworked confidential secretary named Amber Bullard. If the driver brings in receipts then Ms. Bullard will determine the best method of reimbursement for the bus driver, regardless of whether the bus driver has indicated a method of reimbursement on the TDY form. In fact, if the driver has indicated a certain method of reimbursement on the TDY form and Ms. Bullard determines that the driver would receive more money under the other method of reimbursement she will change the drivers TDY form to request the method she believes is more appropriate and submit the altered paperwork to the finance office for payment to the driver. Ms. Bullard makes the decision to alter the driver's forms without consultation with the driver. On April 25, 1990, Ms. Finch and Ms. Gates drove two buses to Orlando, Florida for a Latin Club field trip. The trip lasted from April 25, to April 28, 1990. Prior to leaving on the field trip, Ms. Finch and Ms. Gates filled out Temporary Duty Assignment forms requesting reimbursement for overnight expenses. The portion of the form they filled out gave the date and time that they would be gone, the number of nights they expected to be out and the type of reimbursement they were requesting. Both Respondents requested per diem reimbursement. They did not request reimbursement for actual expenses. Also, prior to the field trip, another driver warned Ms. Finch to be careful because the administration would be watching Ms. Gates. Ms. Finch informed Ms. Gates about the warning and Ms. Gates told Ms. Finch that she had felt the administration had been watching her closely ever since she returned to being a bus driver after being Route Supervisor. The two women determined to be sure that all of their paperwork was accurate regarding the field trip, including compliance with Mr. Murphy's policy. While in Orlando, Ms. Hazard, the teacher in charge of the field trip, allowed the bus drivers to lodge in the teachers rooms during the field trip. Ms. Gates stayed with Ms. Hazard and Ms. Finch stayed with Ms. Marks. Ms. Gates attempted to get a receipt from the hotel in order to comply with Mr. Murphy's rule. The hotel changed the name on the room from Ms. Hazard to Ms. Gates. The evidence did not disclose whether Ms. Gates requested the name change or whether the hotel took it upon itself to change the name given Ms. Gates' request for a receipt. Ms. Hazard discovered the name change and had the hotel change the name back. Ms. Hazard informed Ms. Gates of her action. Ms. Gates then told Ms. Hazard about Mr. Murphy's policy and requested that Ms. Hazard obtain a receipt for her. Ms. Hazard asked the hotel desk clerk to prepare a statement showing that Ms. Gates had stayed in the room. The hotel prepared a receipt with Ms. Gates' name on it but with no room charges on it. The second receipt only reflected one nights stay. Although Ms. Hazard had no authority to determine the sufficiency of the second receipt, Ms. Hazard believed this document to be sufficient and delivered it to Ms. Gates. Ms. Gates believed she needed a document which showed she had stayed in the room for the three nights she was in Orlando and resolved to obtain the type of receipt she believed she needed herself. The same evening, Ms. Gates again approached the hotel's desk clerk and discovered that a receipt for all three nights could not be generated by the hotel until the final bills were posted. She was told she could pick up such a receipt the next morning when all the receipts would be placed on a table for pickup. At the conclusion of the field trip, Ms. Gates picked up the both her receipt and Ms. Finch's receipt from the table set up by the hotel. They were in envelopes and she did not immediately ascertain the information that was on them. Ms. Gates took Ms. Finch's envelope and delivered it to her at her bus. Ms. Finch never reviewed the receipt for accuracy but accepted it from Ms. Gates believing it was what she needed to comply with Mr. Murphy's policy. The receipts reflected the Respondents' names, the hotel rooms in which they stayed and the number of nights they had stayed in the hotel rooms. The receipt also reflected the charges for the room in which the Respondents stayed. The evidence was clear that Ms. Finch did not have any input into obtaining the receipts nor into the information that was placed on the receipts. Again the evidence did not disclose whether Ms. Gates told the hotel to prepare room receipts with room charges on them or whether the hotel placed such information on the receipts through its own volition. Without such crucial evidence it is impossible to determine whether Respondents had a fraudulent intent in obtaining these receipts. Certainly, no such intent was demonstrated in regards to Ms. Finch since she never attempted to obtain any of these receipts from the hotel but left it up to the more senior Ms. Gates to obtain the proper documentation for her. Upon their return, the Respondents filled out a reimbursement voucher. Each of them filled out the left side of the form indicating the dates of travel, places of travel and times of travel. They then signed these forms leaving the remainder of the forms blank. Along with these forms both Respondents submitted the receipt for their room along with other miscellaneous receipts. Ms. Bullard decided, without informing the Respondents, that they should be reimbursed under the expenses reimbursement method. She marked out both Respondents requests for reimbursement under the per diem method and substituted her judgment that they be reimbursed under the expenses method. Ms. Bullard took this course of action because she assumed that because Respondents had turned in their hotel receipts, they were requesting reimbursement for the same. The evidence regarding the precise course of events and the precise conversations held between Ms. Bullard and Respondents is in conflict. This conflict is most likely due to the relative parties point of view and ability to remember portions of these events which were more important to that individual, as well as, that protagonists interpretation of what someone else meant during some conversation. Suffice it to say, that neither version or a combination thereof demonstrates with any probability that Respondents intended to bilk some money out of the School Board. All of the evidence was highly equivocal. Therefore, the Petitioner has failed to demonstrate that Respondents are guilty of any conduct which would subject them to discipline or termination from employment. The Respondents should be reinstated with backpay.
Recommendation It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondents with backpay. DONE and ORDERED this 10th day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 10th day of May, 1991.
The Issue Whether Respondent, a non-instructional employee of Petitioner, should be dismissed on charges that he made unwelcome and offensive sexual advances toward several female employees over whom he had authority.
Findings Of Fact Respondent, Dan Quinn, has been employed by the School Board for 16 years. From July 1981 until November 1985 (when he was charged with misconduct and suspended from duty), he was employed as a driver trainer. In that position he not only trained school bus drivers, but assigned them school field trips for which they received extra pay. His other job duties included assisting the Supervisor of Transportation in coordinating bus routes and communicating with bus drivers assisting bus drivers with disciplinary problems on buses and riding buses when necessary: assisting mechanics in maintaining service and gas records in gassing buses, obtaining parts, and taking buses to inspection stations: serving as a substitute bus driver when necessary: and "other duties as assigned by the Supervisor of Transportation." (Resp. Exh. 5) The job of bus driver trainer is a non-instructional position. Respondent did not have a written employment contract with the School Board. II. The School Board has adopted Rules 4.3.2 and 4.3.3, internal rules not published in the Florida Administrative Code; which provide grounds and procedures for suspending and dismissing non-instructional school employees: Suspension Procedure The Superintendent has the authority to suspend non-instructional school employees for emergency reasons, and shall notify the Board immediately of such suspension. The suspension shall be reviewed by the Board at its regular or special meeting, at which time the employee shall be restored to duty or the Superintendent shall be authorized to serve noticed on the employee of charges against him and the date and place of hearing before the Board; at which all parties shall be heard on all matters relevant to the suspension and the employee's continued employment. Upon conclusion of the hearing; the Board shall restore the employee to duty, dismiss the employee; or otherwise adopt the recommendations of the Superintendent. For the purpose of this rule the term "emergency" includes, but is not necessarily limited to; any situation arising from the conduct of any Board employee for which the Board may find cause to dismiss the employee, such as immorality, intoxication while on duty, gross insubordination; willful neglect of duty, assaults upon other persons, incompetency, unjustified interruption of the orderly conduct of a school or any school activity, conviction of any crime involving moral turpitude or other misconduct. * * * Dismissal of Employees Dismissal of non-instructional personnel from employment by the Board shall be as follows: * * * If the quality of the employee's work is unsatisfactory and unacceptable, the Superintendent may recommend dismissal of the employee. (Petitioner's Exh.2) III. J.F. has been a bus driver employed by the School Board since 1970. At approximately 6:15 a.m. on one morning in January or February 1983, while she was sweeping her school bus before leaving on her route, Respondent entered the bus and passed her in the aisle. After she was seated in the driver's seat, he approached her and, while standing to her right (in the bus aisle), put his left arm behind her neck and around her left shoulder and placed his hand on the side of her breast. He then tried to kiss her on the right cheek. She told him to "knock it off," and "get off the bus." He complied but, while stepping off the bus, told her that, "If you're not good to me, I don't have to give you all these field trips," referring to the lucrative field trips which he assigned to bus drivers. She was embarrassed and offended, but did not report the incident for fear that she would lose her job. (At that time, she did not know whether Respondent had made similar advances toward other bus drivers: she also believed Respondent to be a good friend of Charlie Horn, the Supervisor to whom she would address her complaint.) (Tr.9) There is no evidence that Respondent ever again made a sexual advance toward J.F. or touched her in an offensive manner. Nor did he carry out his threat to deny her field trips. In school years 1982-83, he assigned her six field trips; in 1983-84, seven. IV. Another incident involving Respondent occurred in 1979 or 1980--five or six years before it was used as grounds to suspend and dismiss him. In the bus garage--at approximately 2:00 p.m. on a school day--Respondent approached M.S., another female bus driver, and asked her what time she would return from her route. She told him and he replied, "well, I'm going to have the air turned on upstairs in the meeting room so you and I can go up there and have some fun," or words to that effect. (Tr.34, 41, 52) She interpreted this as a request for "some kind of sex," and was offended. (Tr.39) She told him that there would be "no way" she would go up there with him. (Tr.41) He laughed and walked away. V. The next incident involving Respondent occurred on a school day in November 1983--two years prior to its being used as a basis for suspending and dismissing him. A.H., another female bus driver, was in the bus barn in Kissimmee. She had recently been hired. As the other drivers left for a field trip to the Tupperware Auditorium, about 8:45-9:45 a.m., Respondent approached and asked her to go upstairs to a classroom with him so he could show her something. She complied and accompanied him to the classroom. Once inside he turned off the lights, shut the door, reached for her and tried to hug her. She switched the lights back on; he turned them off again. She protested that she didn't want to do this; and she didn't "play games like this." (Tr.63) He put his hand on her breast; she tried to push him away. He then tried to slip his hand inside her pants. She switched the lights back on; he switched them off. He then agreed to go downstairs, saying, "Don't be mad now, I was only kidding; only fooling around." (Tr.64) Although his actions were unwelcomed and offended her, she agreed to forget it. Later, he asked her if she was mad; although she was still angry; she said, "No." (Tr.64) She did not report the incident because she was a new employee and feared losing her job or being labeled as a troublemaker. Almost two years later, A.H. had another unpleasant encounter with Respondent. After inviting her to his office and resolving a problem she had with a newly assigned route, he said, "See what I did for you." (Tr.65) He then began hugging her and tried to kiss her. She pushed him away, and tried to go out the door. He held her by the arm; pushed her back against the closed door and began rubbing up against her. He then left, telling her not to be mad, he was just kidding. These advances, also, were unwelcomed and offended her. VI. Another incident occurred in October 1984. Respondent approached M.S., another female bus driver. She was standing in the hallway, he put his arm around her and "took a hold" of her right breast. (Tr.96) She considered this an unwelcomed sexual advance and was offended by it. Later in that school year, Respondent told her that he controlled the assignment of field trips and could "throw a lot of money [her] way." (Tr.97) She replied that she had a second job and did not need field trips. She reasonably interpreted his comment as an implied suggestion that if she submitted to his advances; she would receive employment benefits. VII. J.B. was another female bus driver employed by the School Board. At approximately 6:15 or 6:30 a.m., during a school day toward the end of 1983, she was sitting in the driver's seat on her bus; checking it out before leaving on her route. It was still dark. Respondent entered the bus and placed his hand on her thigh, with his fingers "going down between" her thighs. (Tr.119) She brushed his hand away. She did not report this incident because she thought she would not be believed. VIII. Respondent flatly denies that these incidents ever took place. His denial is rejected as unpersuasive. The testimony of the women who received his unwelcome advances is, however, accepted as credible and worthy of belief. These witnesses had no discernible bias or motive to falsify. They were candid and factual, though it was obviously difficult and embarrassing for them to testify. IX. Except for the complaint of incidents, there is no evidence that Respondent, over the last 16 years, has been other than a responsible and satisfactory employee for the School Board. He never received a bad evaluation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be suspended (without pay) from his employment for one year, commencing in November 1985, and that any reinstatement be conditional upon the availability of a comparable position for which he is qualified. He should not, however; be returned to his former position; and That; within 10 days of entry of a final order, Respondent pay the School Board the sum of $200.00 as attorneys' fees which it incurred in obtaining an order compelling discovery; dated April 15, 1986. D0NE and ORDERED this 29th day of August, 1986, in Tallahassee; Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.
The Issue The issue is whether Petitioner, the Manatee County School Board (the "School Board"), may terminate Respondent's employment as a non-instructional employee for "just cause" as defined in Section 6.11 of the School Board's Policies and Procedures Manual, based upon the conduct alleged in the Amended Administrative Complaint filed at the Division of Administrative Hearings on June 9, 2009.
Findings Of Fact Respondent Stephanie Waiters was hired by the School Board as a bus driver on August 6, 1996. In 2005, she was promoted to the position of area coordinator. The five "area coordinators" are first-line supervisors responsible for overseeing the daily operations of the buses within their assigned geographical districts. In December 2008, Terry Palmer was promoted from assistant director to the position of director of transportation. Upon his promotion, he was informed by the School Board that, due to budget constraints, his former position would not be filled, nor would the open position of operations coordinator. On January 23, 2009, Mr. Palmer issued a memorandum to all transportation employees regarding the additional duties that transportation department employees would be required to undertake in response to the budget cuts. Mr. Palmer's memorandum stated that, because he would not have administrative assistance, the area coordinators would report directly to him and would assume certain "additional responsibilities": The expanded role of the Area Coordinators will include: 1. employee evaluations; 2. parent conferences; 3. coaching and assisting employees on their buses; 4. observing bus operations at stops, schools etc. when needed; 5. following through on complaints from schools, parents and/or citizens and coordinating action with others inside and outside the department; 6. counseling employees on performance issues and documenting employee discipline; 7. ensuring all employees assigned to them have all of the training and coaching they need to succeed; 8. initiating, in conjunction with the director, involvement of the Office of Professional Standards on extreme issues of poor performance and/or misconduct. Ms. Waiters was the area coordinator for District 5, which includes Palmetto High School. Bus 537 was assigned to District 5 and ran routes to, among other schools, Palmetto High School. The regular operator of Bus 537 during the 2008-2009 school year was Carol Hindman. Ms. Waiters testified that there had been a lengthy history of student disciplinary problems on Bus 537. On Thursday, February 5, 2009, Ms. Waiters phoned Jose Rodriguez, a substitute bus driver employed by the School Board, and informed him that he would be driving Bus 537 on Monday, February 9, 2009.1 On the morning of Friday, February 6, 2009, Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to familiarize himself with the route. Mr. Rodriguez testified that there were no problems on the bus until it reached the stop at 29th Street and 9th Avenue Drive East ("29th and 9th"). The students at this stop were rowdy and disregarded his instructions to put away their cell phones and iPods and to carry their backpacks in front of their bodies. From that stop onward, it became a "party bus," according to Mr. Rodriguez. The students informed Mr. Rodriguez that they run the bus, and that the "racist cracker bitch" Ms. Hindman just drives it. The students claimed to have hurt Ms. Hindman, and threatened to hurt Mr. Rodriguez if he attempted to control their behavior. One student began calling Mr. Rodriguez "Chico." Mr. Rodriguez testified that the situation was even worse on the afternoon route, with noise, screaming, radios playing and general horseplay making the situation dangerous. That night, Mr. Rodriguez phoned Ms. Waiters to tell her the Palmetto High School students on Bus 537 were "off the chain" and he was not sure he could handle the situation. She advised him to drive the bus on Monday and see how it went when he was alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on the students who made trouble and she would back him up in any way necessary. Mr. Palmer explained the disciplinary authority of bus drivers and the related referral process as follows: From the standpoint of what they can do, is obviously they should try to work with the student on the bus, they can counsel them, they can move their seat, they can work with them on the bus. If that's unsuccessful, they then write a referral which is given to the school for processing, describing what the behavior has been that is disruptive or that is [in] violation of the safety rules, and then that's given to the school to take care of... Typically, [upon receipt of the bus driver referral,] the principal will assign the assistant principal or have parent liaisons that will meet with the individual students regarding behavior, talk about what that behavior is, why it's dangerous, and so forth, counsel them the first time, and then go through a series of progressive disciplinary steps which can lead to suspension from the bus and ultimately expulsion if it's not corrected. The referral form indicates the disciplinary action taken by the principal or his designee. (Section 1006.10(2), Florida Statutes, prohibits the principal from delegating to bus drivers the authority to suspend students from riding the bus.) If the student is to be suspended from riding the bus, the student's parent must first be notified. The school bus operator is also notified of the discipline resulting from the referral. Before a suspended student may ride the bus again, he is required to present the pink carbon copy of the referral form to the driver.2 Mr. Rodriguez drove Bus 537 on the morning of Monday, February 9, 2009. He testified that it was "the same routine" on Monday. Mr. Rodriguez said that he did not even attempt to control the students because his efforts to do so the previous Friday had been such a failure. Mr. Rodriguez stated that he was concerned for his and the students' safety at the three railroad crossings the bus had to traverse on the way to Palmetto High School. The proper procedure is to put on the signal flashers when the bus comes within 50 feet of the railroad crossing. Then, when the bus is within 25 feet of the crossing, the driver turns off everything but the motor to achieve as complete a silence as possible, because he must be able not only to see but to hear whether a train is approaching the crossing. Mr. Rodriguez testified that he tried to silence the students at the railroad crossings, telling them it was for their own safety. They laughed and carried on with their screaming and horseplay. After finishing the morning route, Mr. Rodriguez reported to Ms. Waiters, who told him to write referrals on the students for their behavior at the railroad crossings and the general mayhem described by Mr. Rodriguez. Ms. Waiters told Mr. Rodriguez to take a School Board vehicle and drive to Palmetto High School to turn in the referrals. Mr. Rodriguez testified that he went to Palmetto High School and gave the referrals to the assistant principal, Carl Auckerman. Mr. Rodriguez testified that Mr. Auckerman told him he would take care of the matter. Mr. Rodriguez testified that the situation was at least as bad on the Monday afternoon route of Bus 537. Ms. Waiters phoned him at home that evening, and advised him to write more referrals on the misbehaving students. She asked him if he needed someone else on the bus, but Mr. Rodriguez said he could handle the situation. Mr. Rodriguez testified that he wrote referrals on Monday evening. He drove the bus on Tuesday morning, experienced the "party bus" situation again, and then wrote more referrals. He testified that he and Ms. Waiters drove to Palmetto High School with the new referrals. They met with Mr. Auckerman and the SRO, Officer Douglas Marston of the Palmetto Police Department. Mr. Rodriguez testified that Mr. Auckerman told them he was going to issue bus suspensions of eight-to-ten days to all of the students who received referrals. Mr. Rodriguez and Ms. Waiters were satisfied with this outcome, and left the office. Ms. Waiters generally supported Mr. Rodriguez' version of the events occurring on Monday, February 9 and Tuesday, February 10. However, Mr. Auckerman, the assistant principal, testified that he did not know Mr. Rodriguez, did not meet with him on February 9 or 10, and received no referrals related to Bus 537 prior to February 11, 2009. Officer Marston testified that he knew nothing of the situation on Bus 537 prior to the morning of Wednesday, February 11. The testimony of Mr. Auckerman and Officer Marston was consistent and credible. The testimony of Mr. Rodriguez and Ms. Waiters was inconsistent. Their chronology of events constantly shifted and was unsupported by the documentary evidence, which was consistent with the testimony of Mr. Auckerman and Officer Marston.3 Mr. Rodriguez testified that he alone met with Mr. Auckerman on the morning of Monday, February 9. In a deposition, Ms. Waiters testified that she accompanied Mr. Rodriguez to Palmetto High School on February 9 and was in Mr. Auckerman's office with Mr. Rodriguez. At the hearing, Ms. Waiters testified that her only meeting with Mr. Auckerman on February 9 occurred that afternoon at the Palmetto High School bus loop. During cross-examination, when she was confronted with her contradictory deposition testimony, Ms. Waiters testified: With all the dates, the 9th, the 10th and the 11th, it's very vague, everything. I probably did, probably didn't, but I did go in to see Mr. Auckerman. I don't know if he came to the bus loop on Monday or whether I went, but I did go there two consecutive days with Mr. Rodriguez. The above quote is typical of Ms. Waiters' testimony at the hearing. She would make a definite, affirmative statement as to where and when an event occurred, but when pressed by opposing counsel or contradicted by her own prior statements, she would retreat into vagueness and uncertainty. During her interview with Debra Horne, the OPS investigator, Ms. Waiters stated that referrals were submitted to Mr. Auckerman on Tuesday, February 10 and Wednesday, February 11, then changed her story to state that the referrals were not submitted until Wednesday, February 11 and Thursday, February 12. Both versions contradict her testimony at the hearing that she oversaw Mr. Rodriguez' writing of referrals on Monday, February 9 and Tuesday, February 10. Ms. Waiters attributed her confusion to Ms. Horne's interviewing style.4 Mr. Rodriguez was similarly subject to confusion as to the timing of events. As noted above, he testified that he and Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and that at this meeting Mr. Auckerman announced that the misbehaving students would be suspended for eight to ten days. During cross-examination, Mr. Rodriguez was presented with the referrals that he claimed to have written on February 10, and was forced to concede that these referrals described events that actually occurred on Wednesday, February 11. He unconvincingly continued to claim that the meeting occurred on February 10, and that there existed other referrals that were actually written on February 9 and 10 that were not part of the documentary evidence. Mr. Rodriguez claimed to have his own copies of these referrals, but was unable to produce them at the hearing. In her interview with Ms. Horne, Ms. Waiters claimed that on the morning of Wednesday, February 11, she was enforcing bus suspensions issued by Mr. Auckerman at their meeting on the previous day. At the hearing, she conceded that she could not remember whether the meeting with Mr. Auckerman occurred on February 10 or 11, and further conceded that no student had been suspended from Bus 537 prior to Wednesday, February 11, 2009. Mr. Rodriguez testified that Bus 537 was worse than ever on the afternoon of Tuesday, February 10, because the students knew they had received referrals and had nothing to lose. He was afraid for his personal safety when crossing railroad tracks. On the phone that evening, Ms. Waiters told Mr. Rodriguez that she would be riding the bus on Wednesday morning. As to the events leading up to Wednesday morning, Ms. Waiters testified that Mr. Rodriguez had difficulty writing his initial referrals on Monday because, as a substitute driver, he did not know the names of the students. Ms. Waiters lives in the area served by Bus 537, and drove many of the same students on her bus when they were in elementary school. She suggested that they "pull the tape" from Monday morning so that she could name the misbehaving students for Mr. Rodriguez. The School Board maintains recording video cameras on its school buses. However, the video camera on Bus 537 was broken and in need of repair. A written repair request submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February 10, 2009, stated, "Camera & tape don't work; tape pops out & stays out; no red light indicating camera is on." Nonetheless, Mr. Rodriguez testified that he and Ms. Waiters watched a video recording from Bus 537 on Monday, February 9. Ms. Waiters testified that there was no video tape from February 9 because the tape was "popped out," but that they were able to watch video after the morning route on February 10. She stated that "the tape was working fine, but the audio was totally messed up." No video tape documenting the events of the morning of February 10 on Bus 537 was presented at the hearing. The video camera was repaired and fully functional on the morning of Wednesday, February 11, 2009, and a video recording of the events of that morning on Bus 537 was entered into evidence.5 The undersigned viewed the videotape at the final hearing, and viewed a DVD version of the videotape twice more during the preparation of this Recommended Order. Ms. Hindman, the regular driver, drove Bus 537 on the morning of February 11. Mr. Rodriguez was already on the bus as the video commenced at 6:44 a.m. Mr. Rodriguez thought he was to drive the bus on Wednesday morning, but for some reason Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride the bus because Ms. Hindman had no control over the situation, and he would be free to watch the situation and continue writing referrals on the troublesome students. Ms. Waiters testified that she decided to ride Bus 537 on Wednesday morning because Mr. Palmer had ordered her to "take care" of the situation, which she took as permission to do whatever was needed to bring order to the bus.6 At 6:47 a.m., Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd Avenue, one stop before 29th and 9th. As the bus proceeded, Mr. Rodriguez consulted Ms. Waiters as he attempted to identify some of the troublemaking students. He held a sheaf of papers. Ms. Waiters admonished him not to discuss what they were about to do in front of the students7 already on the bus, and stated her intent to move those students to the back of the bus before the students boarded at 29th and 9th. The bus was scheduled to reach the stop at 29th and 9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters directed the students already on the bus to move to the rear seats. After the bus had been stopped for approximately ten seconds, a student at the 29th and 9th stop, whom Ms. Waiters identified as J.P., knocked on the door. Ms. Waiters moved to the door and out of camera range, but could be heard stating authoritatively, "Get your hands off the window." At the hearing, Ms. Waiters testified that she suspected J.P. was carrying a weapon and that she feared for her safety and that of the students on the bus, but believed that the safest course was to allow him to board the bus rather than confront him about the suspected weapon. This testimony cannot be credited, as Ms. Waiters made no mention of such a suspicion to the Sheriff's deputies who were later dispatched to the bus, to Mr. Auckerman or SRO Marston when they arrived at the bus, or to Ms. Horne during the later investigation. Ms. Waiters' testimony that she did not reveal her suspicions due to fear of reprisals from J.P. or his confederates, based in part on an apparently unrelated and unsolved break-in that occurred at her home five years earlier, is not credited. After admonishing J.P., Ms. Waiters stated, "Everybody that rode yesterday, let's get on the bus, come on." Then, only seconds later, she stated, "Everybody who rode this bus yesterday still thinks they are going to get on the bus. They're not riding anymore." She stood just inside the door and began allowing a few students on the bus one at a time, directing them to their assigned seats. Ms. Waiters could be heard telling one unseen student, "Off the bus, off the bus," while his voice could be heard saying, "But I ride this bus." She began reading out names from a list provided by Mr. Rodriguez. The named students, apparently those who did not make trouble for Mr. Rodriguez the previous day, were allowed to board the bus.8 After these students were boarded and seated, Ms. Waiters directed them to move to the back of the bus. Then, Ms. Waiters began letting the rest of the students from 29th and 9th onto the bus. As they boarded, she said, "Enjoy this ride. This is y'alls last day riding the bus ever." The videotape shows that these students boarded the bus in orderly fashion and were seated without incident. As the students were boarding, Ms. Waiters stated that the bus would not be stopping at 29th and 9th any more. "You're within walking distance, you'll walk," she said to an unseen student. By 6:59 a.m., all of the students had boarded the bus at the 29th and 9th stop. The bus remained stopped. The students talked loudly among themselves, but were otherwise well behaved. Ms. Waiters phoned her dispatcher and told her to request that the Manatee County Sheriff's Office send deputies to the bus stop at 29th and 9th. At approximately 7:02 a.m., a male student attempted to disembark, telling Ms. Waiters that he had phoned his mother and she was coming to pick him up. Ms. Waiters told him to be seated because they had to wait for the Sheriff's deputies to arrive. The student complained, "What Sheriff? Nobody didn't do nothing," but obeyed Ms. Waiters' instruction. While they waited, the students in the front of the bus could be heard laughing and joking about what various parents or step-parents might do when they came to the bus, such as breaking the windows or tearing off the door.9 At approximately 7:06 a.m., Ms. Waiters spoke to some unseen parents through the closed door of the bus, saying, "Wait a minute. We'll release them in a second." A few seconds later, she addressed the students: "We'll either be releasing you to your parents or the Sheriff. So if you have a cell phone, you want to call your parents. You can go ahead and call them." At this point, no Sheriff's deputy had arrived at the scene. The evidence established that the first deputy to arrive, Deputy Kenneth Warner, was not even dispatched until 7:07 a.m. This fact is significant because during her interview, Ms. Waiters told Ms. Horne that law enforcement had directed her to tell the student to call their parents. At the hearing, Ms. Waiters testified that a Sheriff's deputy told her to have the kids call their parents, and that she was just repeating what the deputy told her. Ms. Waiters' testimony on this point is clearly not true. At approximately 7:07 a.m., Ms. Waiters stated to the students, "We're waiting to release you to the Sheriff or your parents." At this point, the students were still in high spirits, talking loudly to each other but not noticeably upset. At approximately 7:08 a.m., a call was made to the Sheriff's Office by a parent. The caller informed the dispatcher that her son had used his cell phone to call her from Bus 537. Her son told her that the students were locked on the bus and the driver refused to speak to parents who had arrived at the bus stop in response to their children's calls. Deputy Warner arrived at 29th and 9th at 7:10 a.m. His view of the situation, which is entirely supported by the videotape, was as follows: [The students] were all sitting in their seats, no one was up, but they were vocal, they were expressing their concerns about comments and stuff like that Ms. Waiters was stating... She was kind of instigating an issue. She was walking up and down, and making comments. Like if they made a comment to her, she would reply with a comment which would fire them up, and then they would all have comments back and forth... [The four or five parents who arrived] just didn't know what was going on, as me, I didn't know what was going on, either. They were wondering why they were getting calls from their children. So, I don't know. They were upset. Deputy Warner credibly denied that he gave any directives to Ms. Waiters, or indeed had much idea why he had been summoned to the scene: "It was my impression when I arrived that she just needed me there as support, and that she was handling the situation." The videotape shows Ms. Waiters meeting Deputy Warner at the door of the bus, and stating that this was a situation similar to the "one we had a couple of weeks ago that I took care of."10 She told the deputy that certain students on the bus must either be taken to the juvenile detention center ("JDC") or be released to their parents, because there have been "a lot of problems" on the bus. Ms. Waiters offered Deputy Warner no further details as to why the students could not ride the bus to school. Because he was confused by the situation, Deputy Warner radioed dispatch and requested that SRO Marston respond to his call. At 7:12 a.m., Ms. Waiters announced to the students, "You need to call your parents because you will not be riding the bus. The ones that have parents at work, you'll need to get your aunts or something, because you will not ride the bus." Ms. Waiters began releasing students whose parents were waiting outside the bus. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told the remaining students that they needed to call their parents for a ride to school. Deputy Daniel Whidden was dispatched by the Sheriff's Office and arrived at the scene after Deputy Warner. Deputy Whidden, who was also a football coach at Palmetto High School and knew several students on the bus, testified that he gave Ms. Waiters no direction on how to handle the situation. Ms. Waiters told him that there had been problems on the bus the day before, and she was calling parents and having them pick up their children. At 7:23 a.m., Deputy Whidden boarded the bus and explained to the students that they were not allowed to disembark because the School Board was responsible for their safety. He told the students that SRO Marston was on his way to the bus stop to assist in transporting to school those students who were not allowed to ride the bus. Deputy Whidden testified that when he boarded the bus, the students were all in their seats. Some were protesting that they had done nothing wrong, but no one needed to be calmed down. This testimony is consistent with the evidence of the videotape. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the students in the rear would be transported to school on the bus. As to the others, she stated, "I told them yesterday at the school they might as well find transportation in the morning. Well, they came here, and we can't leave them standing out at the bus stop." In conversation with Deputy Whidden, a female student confirmed that some of the students had been told they would not be allowed on the bus for the rest of the year.11 Officer Marston and Mr. Auckerman arrived at the bus stop at 7:31 a.m. When they arrived, most of the students had already disembarked. At no time did Mr. Auckerman tell Ms. Waiters that the students on the bus should call their parents or be transported by Sheriff's deputies. Ms. Waiters' testimony to the contrary is not credited. Mr. Auckerman, Officer Marston, and Deputy Whidden drove students to Palmetto High School. The bus began to run again at 7:37 a.m., 44 minutes after it stopped at 29th and 9th. The bus made only one more stop before arriving at Palmetto High School. This stop occurred at 7:43 a.m. Two students boarded the bus. Bus 537 is scheduled to make five stops after 29th and 9th. Because of the delay, Ms. Waiters called the driver of Bus 534 to cover some of Bus 537's stops. However, not all of Bus 537's stops were covered, and Bus 534 was 15 to 20 minutes late picking up some of the students. Further, Bus 537 was scheduled to make an elementary school run after it dropped off students at Palmetto High School. The bus made only one of its nine scheduled stops for elementary school students because the parents of most of those students had given up on the bus and either driven their children to school or had the children walk.12 During the 2008-2009 school year, classes began at Palmetto High School at 7:45 a.m. Bus 537 typically arrived at Palmetto High School at 7:20 a.m. On Wednesday, February 11, 2009, Bus 537 arrived at Palmetto High School at 7:57 a.m., twelve minutes after the final bell. After the bus arrived at Palmetto High School, Ms. Waiters and Mr. Rodriguez went into the school and spoke to Mr. Auckerman. They presented him with the list of names that they had used to identify the misbehaving students on Bus 537. Mr. Auckerman told them that he would need referrals before he could take any disciplinary action against the students. Ms. Waiters and Mr. Rodriguez submitted some referrals on Wednesday, February 11, then submitted additional referrals on Thursday, February 12. The referrals described student misbehavior, such as failing to be silent at railroad crossings and using cell phones, but gave no indication that either Ms. Waiters or Mr. Rodriguez ever feared for their safety on Bus 537. Mr. Rodriguez testified that the only time he feared for his physical safety was when he had to drive the noisy bus over railroad crossings. He did not fear any sort of physical assault by the students on the bus.13 Mr. Auckerman passed on the referrals to Palmetto High School's parent liaisons, Robert Kelly and Kevin Jackson. "Parent liaisons" are School Board employees responsible for general disciplinary referrals and communicating with parents regarding student behavior and discipline. The principal of Palmetto High School has delegated the authority to issue bus suspensions to the parent liaisons. On Friday, February 13, Mr. Kelly interviewed some of the students. He decided that the referred students would be suspended from riding the bus, commencing Tuesday, February 17. However, as Mr. Kelly and Mr. Jackson were about to finalize the suspensions by entering the referrals into the computer system, Mr. Auckerman halted the suspension process pending a School Board investigation into the events of the morning of February 11. Mr. Auckerman was reacting to parent complaints about Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of transportation, also began receiving complaints. Mr. Palmer spoke with Ms. Waiters, safety officer John Searles, and school personnel, and was unsettled by the inconsistency of their stories. On or about February 18, 2009, Mr. Palmer referred the matter to the OPS. Ms. Horne then began her investigation of the incident. At the conclusion of her investigation, Ms. Horne presented a written OPS investigatory report to her supervisor and scheduled a meeting of all persons in Ms. Waiters' chain of command, up to Mr. Palmer, the transportation director. At a meeting on March 19, 2009, the School Board personnel met and recommended to the Superintendent that Ms. Waiters' employment with the School Board be terminated. The Superintendent concurred with the recommendation. Aside from contending that she was merely carrying out suspensions issued by Mr. Auckerman, which was completely at odds with the credible evidence produced at the hearing, Ms. Waiters' chief defense was that her actions on February 11, 2009, were consistent with the action she took in an incident that occurred on Wednesday, January 28, 2009, for which the bus driver received a laudatory write-up in the local newspaper and the praise of law enforcement and school officials. In the earlier incident, a substitute driver on a morning route to Lakewood Ranch High School pulled the bus over on State Road 64 and refused to continue because she believed the students' actions were placing her and the students in danger. In particular, the students were rocking the bus back and forth to the point that the driver feared losing control. Ms. Waiters drove out to the scene, followed shortly by at least six Sheriff's deputies. Ms. Waiters described the students as "out of control," "hanging out of the windows, yelling and cursing, throwing stuff out of the windows, rocking the bus." Ms. Waiters boarded the bus and was able to calm some of the students. The Sheriff's deputies called the parents of the troublemaking students and gave them the choice of picking up their children or having them taken to the JDC. According to Ms. Waiters, some students actually fought with their parents and had to be forcibly taken to the juvenile detention center. The next day, the local newspaper ran an article containing praise for the substitute bus driver. The principal of Lakewood Ranch High School and a spokesman for the Sheriff's Office were both quoted saying that she "did the right thing." Though Ms. Waiters was not mentioned in the article, it is clear from her testimony that she believed the praise was reflected on her. The differences between the incidents of January 28 and February 11, 2009, are clear. In the earlier incident, law enforcement was summoned to deal with an immediate, on-going dangerous situation. Sheriff's deputies took charge of the matter, with some assistance from Ms. Waiters, and concluded that the bus driver had done the right thing in stopping the bus when it became too hazardous to continue. In the February 11 incident, the videotape makes plain there was no danger whatever. Once allowed to board the bus, the students took their seats and talked among themselves. There were no threats, no disturbances, no rocking of the bus. Ms. Waiters' claim that she felt threatened was unsupported and not credible. The students, with good reason, appeared mostly puzzled as to what was happening. From the incident of January 28, 2009, Ms. Waiters apparently took the lesson that she was authorized to stop the scheduled running of a school bus for nearly an hour and to call out Sheriff's deputies to assist her in disciplining students for misbehavior that occurred on previous days. This was the wrong lesson. Ms. Waiters acknowledged that she did not have authority to suspend students from the bus, and claimed that she was not "suspending" the students; rather, she was restoring "order and control" on the bus for the students' safety.14 Ms. Waiters' actions might have been partially justified had there been some imminent danger such as that on the Lakewood Ranch High School bus on January 28, 2009, though even in that situation it was Sheriff's deputies, not Ms. Waiters, who removed the problem students from the bus. On Bus 537 on February 11, 2009, in the absence of any immediate threat or even untoward behavior by the students, Ms. Waiters took it upon herself to halt the bus and require students to phone their parents for rides to school well before law enforcement arrived on the scene. Ms. Waiters' actions were disproportionate to the situation on the bus, and constituted "suspensions" of the students under any reasonable understanding of that term. Ms. Waiters' actions on the morning of February 11, 2009, might merit discipline short of termination had Ms. Waiters fully and honestly cooperated in the subsequent investigation. However, Ms. Waiters stubbornly told a convoluted and contradictory version of events that made little sense on its face and was at direct odds with the consistent and credible testimony of School Board personnel and law enforcement officers who were present during the relevant events, and at odds with the direct evidence of the videotape from Bus 537. Ms. Waiters lack of candor throughout the process, coupled with the extremely poor judgment she employed in stopping the bus and suspending students without immediate cause or authority, fully justifies the School Board's decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Manatee County School Board, enter a final order that terminates the employment of Respondent, Stephanie Waiters. DONE AND ENTERED this 1st day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2010.
The Issue The issues in this case are whether Respondent violated Sarasota County School Board policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District and, if so, whether Respondent's employment with the Sarasota County School Board should be terminated.
Findings Of Fact The School Board is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Mr. Witt is the superintendent of schools for the Sarasota County School District. At all times relevant, Ms. Jones was employed with the School Board by contract as a school bus driver. In that capacity, Ms. Jones was classified as a non-professional and non-administrative contract employee of the School Board's transportation department. She agreed to accept the contractual appointment (school bus driver) to perform such duties and services as may be required to comply with all laws of the State of Florida and rules and regulations made by the School Board. The School Board's transportation department operated a bid policy for its school bus drivers. Under the School Board's bid policy, each school bus driver was afforded an opportunity to bid (make a written selection of a particular school bus route) on the school bus route for the forthcoming school year. At the start of the 2003-2004 school year, Ms. Jones bid upon and was awarded the Oak Park School (Oak Park) bus route. Oak Park was attended by elementary through high school-aged exceptional students or exceptional student education ("ESE") students, as defined under Section 4.12 of the School Board's policies manual. Ms. Jones was assigned bus number 9615. The first responsibility of the school bus driver is the safe operation of the school bus, and the second responsibility is providing discipline to those who are transported. In October of the 2003-2004 school year, Susan Snyder (Ms. Snyder) was assigned to work on school bus number 9615 as the school bus attendant. A school bus attendant's primary responsibilities are to ensure the safety of and provide care to the students that are being transported on the bus and to minimize distractions to the school bus driver caused by the students while being transported. The students who were being transported by Ms. Jones to Oak Park have behavioral issues, are physically handicapped, and/or have been unsuccessful at other schools within the Sarasota County School District. At various times during the 2003-2004 school year, between eight and 12 students between the ages 14 and 17 rode the bus driven by Ms. Jones. Four of those students were L.J., M.N., N.K., and J.M. The collective testimonies of these four witnesses established that they frequently used profanity on the bus in their daily conversations with each other and in their daily conversation, in the context of discipline, with Ms. Jones. The students would routinely yell among themselves and at Ms. Jones, and she, in return, would yell at them. When Ms. Jones told the students to do something, "sit down," "stop playing around," or "don't open the windows on the bus," the students refused to obey, and Ms. Jones would threaten the students with physical violence. Those threats would elicit like-kind responsive threats from the students. The evidence is inconclusive for the purpose of identifying specific profanity uttered by a specific student. However, the evidence is clear that an exchange of profanity occurred between Ms. Jones and the students identified in paragraph 4 hereinabove. At some unspecified time, but prior to December 9, 2003, Ms. Jones had previously and repeatedly instructed the students to leave the bus windows up while traveling. As they were traveling down Interstate 75 (I-75), N.K., ignoring Ms. Jones' previous instructions to leave the windows up, began lowering the window. Ms. Jones observed N.K.'s actions and repeated her instructions to leave the window up. She was unable to stop on the interstate, but when she reached the Fruitville, I-75 exit, Ms. Jones exited the interstate and stopped the bus. She then turned off the engine, got up from the driver's seat, and went to N.K.'s seat where she pushed N.K., and N.K. pushed her back. The shoving back and forth between Ms. Jones and N.K. ended with Ms. Jones slapping N.K. At the end of her bus run for that day, Ms. Jones reported the incident by a Student Discipline Referral Report. N.K. told his mother of the incident, and she informed Oak Park administration. After consideration of all the facts, Oak Park administration disciplined N.K. for his conduct on the bus. It is found that Ms. Jones willfully violated the School Board's policy by slapping N.K. The "Yugioh" playing cards incident The students would play a card game known as "Yugioh." The cards belonged to L.J. Ms. Jones had previously instructed the students not to play "Yugioh" on the bus because of the disturbance the game caused, and she specifically instructed L.J. not to bring his "Yugioh" cards on the bus. On December 9, 2003, L.J. and other students, with disregard of Ms. Jones' previous instruction not to play "Yugioh" on the bus, were again playing "Yugioh." Ms. Jones asked them to stop, and they ignored her. She asked L.J. to bring the cards to her, and he refused to obey her request. When she reached the stop sign at the intersection of South Briggs Avenue and Bahia Vista Street, in Sarasota County, Florida, Ms. Jones stopped the bus, turned off the engine, and approached L.J. where he was seated. An argument ensued, which was accompanied by Ms. Jones' attempt to take the cards from L.J. and his refusal to relinquish his cards. During this altercation, Ms. Jones struck L.J. about his head, shoulders, and face. She pinched his cheeks. L.J. and Ms. Jones exchanged vulgar insults back and forth. Ms. Jones told M.N., another student, to grab L.J.'s "titties" and pinch them, and he did so. It was noted that L.J. has a large body with an extraordinary fleshly chest. After the "tittie"-pinching incident, L.J. asked to be let off the bus at that location, which was not his usual bus stop, and Ms. Jones, as she returned to the driver's seat, initially refused to do so. After sitting in the driver's seat, Ms. Jones granted L.J.'s request to exit the bus at the intersection of South Briggs Avenue and Bahia Vista Street. It is found that Ms. Jones did not violate the School. Board's policy by permitting L.J. to get off the bus at a location other than his normal pick up and exit stop. Drivers are not allowed to prevent a student from getting off the bus; they can only call transportation dispatch and report the student by name and the location the student got off the bus. It is found that Ms. Jones did, however, violate the School Board's policy when she struck L.J. and when she requested and encouraged another student to inappropriately touch L.J.'s chest. When he arrived home, L.J. reported the bus incident to his parents, and they immediately registered a complaint against Ms. Jones with Oak Park administration. Two days later, December 11, 2003, L.J.'s father, L.J., Sr., filed a police report with the Sarasota County Sheriff's Department. An officer investigated the matter on December 19, 2003, by interviewing only L.J. and Ms. Snyder. Based upon those two interviews, the investigating officer recommended that the charge of battery be filed against Ms. Jones. There is no further evidence of record regarding the battery charge recommendation made by the investigating officer. The School Board's transportation dispatcher was informed of L.J.'s parents' complaint, and he radioed Ms. Jones and Ms. Snyder instructing them, upon completing the evening bus run, to report directly to his office and to give written reports of the L.J. incident. In her written report given immediately following the incident, Ms. Jones acknowledged that there was an exchange of profanity between her and the students involved, but she denied hitting L.J. or telling other students to pinch L.J.'s titties. The evidence of record reflects that Ms. Snyder did not dispute Ms. Jones' version of the incident. Ms. Snyder also executed a written incident report immediately following the incident containing her version of what occurred. According to the School Board, Ms. Snyder's initial written incident report was inexplicably lost. At the hearing, the School Board introduced an unsigned document (the School Board's Exhibit P-9) that was not sworn to by Ms. Snyder, purporting it to be a second revised report written by Ms. Snyder. This document is found to be unreliable. Later on the evening of December 9, 2003, after giving her written report that was somehow lost, Ms. Snyder called her Union representative and gave a description of what took place on the bus on December 9, 2003. A meeting was arranged with the director of transportation, Jody Dumas (Dumas). At the meeting, Ms. Snyder gave a version of the December 9, 2003, bus incident that was contrary to her earlier confirmation of Ms. Jones' December 9, 2003, written incident report. Ms. Snyder's recall of the December 9, 2003, incident alleged that Ms. Jones slapped and verbally abused and humiliated L.J. She went on to include a claim that Ms. Jones intimidated her and the students by telling everyone on the bus that they were to say nothing happened on December 9, 2003. Mr. Dumas conducted his investigation of Ms. Snyder's allegations by interviewing M.N. and J.M. on December 12, 2003. During the initial interview, M.N. confirmed Ms. Jones' version of the incident. Under the pressure of Mr. Dumas' continuous questioning, coupled with the promise that he would not be required to ride Ms. Jones' bus anytime in the future, M.N. capitulated and confirmed the "tittie"-pinching version of the incident and agreed with Ms. Snyder's "say nothing happened on December 9, 2003," addition to her version of the incident. It is found that Ms. Jones did in fact instruct another student to pinch L.J.'s titties, and the student, for reasons of his own, complied with the request while L.J. sat there humiliated. The evidence of record in support of Ms. Snyder's allegation that Ms. Jones intimidated her and all the students on the bus by telling them "say nothing happened on December 9, 2003," is unreliable and rejected by the undersigned. On December 10, 2003, Mr. Dumas suspended Ms. Jones with pay pending further investigation of the December 9, 2003, incident. Mr. Dumas, after his review of Ms. Snyder's version of what occurred and his interviews with unnamed students, met with Ms. Jones and confronted her with the "slapping and verbal abuse of [L.J.]" allegations. Ms. Jones denied slapping and verbally abusing L.J., at which time Mr. Dumas advised Ms. Jones that he would recommend her termination to the School Board. It is found that the suspension of Ms. Jones by Mr. Dumas was appropriate and in accordance with the School Board's policy. On December 19, 2003, in his memorandum to Scott Lempe (Mr. Lempe), director of human resources, Mr. Dumas set forth specific factual bases in support of his recommended termination of Ms. Jones: (1) Ms. Jones slapped L.J. at least two times in the face; (2) Ms. Jones told another student on the bus, M.N., to go over to L.J. and pinch his titties; and (3) on at least one other occasion, Ms. Jones told one student to slap another student because he was putting a window down. Mr. Lempe prepared a notice of termination on January 5, 2004, containing his detailed explanation of the grounds for the termination based upon Ms. Jones' violations of Section 5.30(2)(c) of the Sarasota County School Board policies manual, regarding corporal punishment and the Policy Manual, Code of Professional Conduct of Non-Instructional Support Staff, and Sections 1012.22 and 1012.27, Florida Statutes (2003), insubordination and misconduct in office. On February 18, 2004, the School Board terminated the employment of Ms. Jones with its transportation department as a school bus driver. The School Board proved, by a preponderance of credible evidence, that Ms. Jones violated the School Board's policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District, as alleged in the notice of termination dated February 18, 2004.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating the contractual employment of Respondent, Nancy Jones. DONE AND ENTERED this 19th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia 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 19th day of August, 2004. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 2750 Ringling Boulevard, Suite 3 Sarasota, Florida 34237 Nancy Jones 1280 Highland Street Sarasota, Florida 34234 Gene Witt, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3304 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent properly suspended Petitioner's Contract for Transportation of School Children and revoked his license to drive a school bus.
Findings Of Fact Respondent's method of providing transportation for its students is unique in the state of Florida because it contracts annually with independent contractors for each bus route. Pursuant to the contract, independent contractors furnish a bus or busses and are responsible for employing qualified drivers. In order to be qualified, drivers must hold a license issued by Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code. Respondent and Petitioner entered into an annual contract for Petitioner to transport school children in Bus #657 for the 1991-1992 school year. At all times material hereto, the parties continued to perform under the terms of the 1991-1992 contract because Respondent was still negotiating the bus contracts for the 1992-1993 school year. Petitioner had been an independent bus contractor for approximately nineteen (19) years. The contract provided no guarantee that Respondent would renew its contract with Petitioner from year to year. At all times material hereto, Petitioner's wife, Eloise J. Lester, was the independent bus contractor for Bus #28. At all times material hereto, Petitioner held a Florida Department of Education school bus license issued by Respondent to operate a school bus. He had been licensed to drive a school bus for Respondent for nineteen (19) years. During that time, he had driven a bus on the Plummer Road route approximately 1,800 times with no reported mishaps. His prior record as a bus driver and bus contractor was unblemished. Respondent uses the Florida School Bus Drivers Handbook, published by the Florida Department of Education, as the curriculum to initially train drivers and for annual in-service training. Respondent gives a copy of this handbook to every driver. On the morning of February 8, 1993, Petitioner was driving his wife's bus #28 with students on board. He approached the railroad crossing at 9520 Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern Railroad train #229 a "good ways" down the track. The railroad crossing signals, flashing lights and bells, were activated indicating that the train was approaching the crossing. The engineer blew the train's whistle. Despite these warnings, Petitioner drove the bus across the tracks in front of the approaching train. The bus cleared the tracks just seconds before the train entered the crossing. The engineer, Jimmy W. Carter, and the conductor, Everett Maine, witnessed the incident and immediately reported the "near miss" to the railroad yard by radio. Later they prepared written incident reports. Norfolk Southern Railroad reported the incident to Respondent. Mr. Carter has been a train engineer for twenty-five (25) years. Mr. Maine has been a train conductor for forty-three (43) years. They were not under the influence of drugs or alcohol at the time of the incident. They were not involved in any conspiracy to harm Petitioner. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the bus in her driveway with her grandchildren on the morning of February 8, 1993. She testified that she did not know where the train was when the bus crossed the tracks. She did not remember hearing any bells or whistles. Petitioner testified that he could see the light of the approaching train before he entered the crossing. He denied that the crossing lights were flashing or that the alarm bells were ringing at that time. However, Petitioner stated that under certain circumstances, even if the crossing signals were activated, he had discretion to cross the tracks, i.e. when there is no train in sight or a train is stopped on the track. The eyewitness testimony of the engineer and the conductor relative to the activated signals and the distance of the train from the crossing at the time Petitioner drove across the tracts is more persuasive than any testimony to the contrary. After completing an investigation, the Director of Transportation, as the designee of the Superintendent made a determination in writing to suspend Petitioner's bus contract and revoke his school bus driver's license effective February 19, 1993. The initial suspension of the contract and revocation of the license was not permanent because both actions were subject to review by Respondent. The Respondent has discretion to enter into a new bus contract with Petitioner and to reinstate Petitioner's school bus license provided he meets the requirements of Rule 6A-3.0141, Florida Administrative Code. In March of 1993, Respondent assigned the contract for Route #657 (School Bus #657) to Petitioner's wife at her request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order affirming the suspension of Petitioner's bus contract and revoking his school bus license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of May, 1995. SUZANNE F. HOOD, Hearing Officer 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 17th day of May, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Accepted in paragraph 6 of this Recommended Order. Accepted in paragraphs 2-4 of this Recommended Order. Accept that the testimony of the witnesses is in conflict. However, the testimony of the engineer and conductor is more persuasive than the testimony of the neighbor, the Petitioner, or any other witness. Rejected. The suspension and revocation was subject to review by Respondent and will not become final until the Respondent issues a Final Order in this proceeding. Respondent has discretion to enter into a new contract with Petitioner and to reissue a school bus license. Rejected. Ms. Mardis did not see the bus as it crossed the tracks. The testimony of the engineer and the conductor is more persuasive. Rejected. The testimony of the engineer and the conductor is more persuasive. Rejected. The contract was suspended and the license revoked subject to review by Respondent. Even though the contract does not expressly provide for an appeal to Respondent under the facts and circumstances of this case, the right to review is implicit in the contract. Rejected. Regardless of what was said at staff meetings or in conference with Petitioner, the contract was not suspended and the license not revoked until Petitioner was notified in writing. Even then the adverse decisions were reviewable by Respondent. The contract does not specifically provide Petitioner an opportunity to explain why his contract should not be suspended and his license revoked at the time of the staff conference. The suspension and revocation was subject to review before the Respondent. Moreover, Respondent has provided Petitioner with a due process hearing by referring this matter to the Division of Administrative Hearings. Rejected. Ms. Lester was paid for transporting students in Bus 657 for the balance of the 1992-1993 school year beginning March of 1993. Since that time, Ms. Lester has been paid for transporting children in Bus 657. Respondent's Proposed Findings of Fact 1.--15. Accepted in paragraphs 1-12 of this Recommended Order. 16.--17. Accepted in paragraphs 1-2 of this Recommended Order. 18.--19. Accepted in paragraph in paragraph 11 of this Recommended Order. Accepted but unnecessary to resolution of case. Accepted but not at issue in this case. 22.--23. Accepted in paragraph 3. 24.--25. Accepted in paragraph 12 of this Recommended Order. COPIES FURNISHED: Michael Mullin, Esq. 26 S. 5th St. Fernandina Beach, FL 32034 Clay Meux, Esq. Vicki Reynolds, Esq. 600 City Hall 220 E. Bay St. Jackonsville, FL 32202 Dr. Larry Zenke Duval County School Board 1701 Prudential Dr. Jacksonville, FL 32207-8154 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the Sarasota County School Board (Petitioner) has cause for terminating the employment of Virgil Mae (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a school bus driver. The Respondent was subject to the provisions for "classified" employees as identified in the Collective Bargaining Agreement (CBA) between the Petitioner and the "Sarasota Classified/Teachers Association." Under the terms of the CBA, the Petitioner's school bus drivers must comply with various requirements including: possession of a commercial driver's license (CDL) and automobile insurance, passage of an annual health physical, passage of a "reflex" or dexterity test, and completion of in-service training. In May of each year, the Petitioner makes physicians available to provide health physicals for school bus drivers at no charge. In the alternative, the Petitioner pays the insurance co-payment for drivers who choose to obtain physicals from their personal physicians. School board policy requires that the reflex test be conducted within 30 days of the physical. Accordingly, the Petitioner provides reflex testing in May, so that it may be completed in conjunction with physicals. The reflex testing is also at the Petitioner's expense. Prior to May of each year, the Petitioner posts flyers at the school bus compounds to remind bus drivers of the requirements and advise of the dates of the tests. The Transportation Department also broadcasts the information through a radio dispatch system that provides communications links to all drivers. Written notices are also sent to the drivers. Most drivers complete both tests during May, but drivers may complete the tests in their own time. If a driver chooses to obtain a physical through a private physician, the Transportation Department will schedule the reflex test to accommodate the driver's physical, so that both are completed within 30 days. The Respondent asserted that he was unaware of the requirement that the reflex test be conducted within 30 days of the physical, but the greater weight of the evidence establishes that he has been a bus driver for the Petitioner since October 2003, that he has complied with the annual requirement in previous years, and that the policy has not changed during the term of his employment. The evidence further establishes that the Respondent had not completed the physical even by the time of the administrative hearing. Each fall, during the week preceding the commencement of school, the Petitioner's Transportation Department conducts a "Safety School," during which the school bus drivers receive in- service training sufficient to meet the relevant requirements applicable to drivers. School bus drivers are paid their regular wages to attend Safety School. On the second day of Safety School, the Petitioner conducts a "bid day," through which drivers bid on routes based on their employment seniority. Under the terms of the CBA, school bus drivers must have the valid CDL and have completed the health physical and in-service training no later than the time of the initial bid. Article XXI, Section M, of the CBA provides as follows: An employee who fails to return to duty for each of the first three work days of a new school year and who fails to notify his/her cost center head of his/her intentions will be considered to have abandoned his/her job and may be terminated. At the hearing, the Respondent asserted that he did not return to work because he believed his insurance had lapsed and that his driver's license was suspended and that he was trying to resolve the matter so that he could return to work. He further asserted that he contacted his supervisor and advised him of the matter, by leaving the information with the receptionist who answered the calls. At the hearing, the receptionist acknowledged that the Respondent had called, but stated that he declined to leave a message or a telephone number to which the supervisor could have returned the calls. She testified that according to the "Caller ID" telephone number information, the Respondent was calling from a storage company. The evidence establishes that the Respondent did not appear for the first three work days of the 2008-2009 school year and, in fact, was absent through the first eight days of the school year, extending over a two-week period. The Respondent's explanation for his failure to return to work lacks sufficient credibility and is rejected. Additionally, the evidence establishes that the Respondent failed to obtain the required annual health physical or to complete the in-service training prior to bid day and, accordingly, was not in compliance with the requirements of the CBA. During his employment by the Petitioner, the Respondent has been cited for excessive absences on several occasions. At the hearing, the Respondent asserted that the absences were related to health matters. The evidence establishes that the Respondent failed to supply medical documentation for some of the absences, and they were deemed to be "unexcused."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Virgil Mae. DONE AND ENTERED this 24th day of December, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2008. COPIES FURNISHED: Virgil Mae 1575 20th Street Sarasota, Florida 34234 Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues presented are whether Petitioner J. Ruiz School Bus Service, Inc., submitted the lowest responsive bid for school bus route 4606 and whether Petitioner A. Oliveros Transportation, Inc., submitted the lowest responsive bid for school bus route 7602.
Findings Of Fact Respondent School Board of Miami-Dade County issued its invitation to bid No. 053-ZZ07 seeking bids from private school bus companies for the School Board's school bus routes for the 1999-2000 school year, renewable for two additional one-year periods by agreement. Bid opening occurred on August 12, 1999. Twenty-one vendors responded to the School Board's invitation to bid. Four bids, including those of Petitioners, were rejected as non-responsive because they failed to include the required UCT-6 form. Petitioner Ruiz submitted the lowest bid for school bus route 4606, and Petitioner Oliveros submitted the lowest bid for school bus route 7602. At the School Board meeting on August 25, 1999, Ruiz' bid and Oliveros' bid were declared non-responsive to the bid specifications for failure to include the UCT-6 form and were rejected. School bus route 4606 was awarded to the next lowest bidder M & M Marroquin School Bus Services, Inc., and school bus route 7602 was awarded to the next lowest bidder Bestway Bus Service, Inc. (hereinafter "Bestway"). Those two vendors had submitted UCT-6 forms with their bids. Petitioners timely filed their notices of protest challenging the School Board's decisions. Rather than stopping the award process, the School Board entered into contracts with M & M and Bestway. The bid specifications contained the following provision under special condition numbered 3: The vendor will be required to submit, with the bid, the most recent copy of their [sic] Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, showing current employees and payroll amount. In lieu of the June 30, 1999, Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, a blank copy of the UCT 6 Form is provided and attached hereto for those vendors who do not have the June 30, 1999 quarterly report. This form must be completed in its entirety, with a copy being submitted with the bid and the original retained by the vendor for filing with the state. Failure to submit this report/form will cause the vendor to be considered non-responsive. Effective September 30, 1999, UCT 6 forms will be required to be submitted to Mr. Robert Newell, at the Office of Risk and Benefits Management on a quarterly basis. The UCT 6 form shall reflect all drivers currently certified and on file with the Department of Transportation. Failure to do so shall result in fourteen (14) months loss of route. Special condition numbered 4 provided that the School Board reserved the right to reject any and all bids and to waive irregularities. Special condition numbered 5 required that a copy of the occupational license be submitted with the bid and further provided that: "The information on the occupational license (name, address, etc.) shall be identical to the information submitted on the Bidder Qualification Form." A number of bidders who were not declared non- responsive submitted occupational licenses and bidder qualification forms where the names on the licenses and forms were reversed, technically a violation of special condition numbered 5. Further, one bidder not declared non-responsive submitted an occupational license in the name of an individual but submitted a bid in the name of a corporation, a violation of that special condition. Another bidder not declared non- responsive submitted a bidder qualification form and an occupational license with different addresses, and one more submitted a bidder qualification form and occupational license with different corporate names. The reasons for requiring vendors to file a UCT-6 form were to verify the vendor's current number of employees, to ascertain if the named employees were certified by the School Board's transportation department, and to determine whether the bidder was in compliance with State of Florida requirements for unemployment compensation and worker's compensation insurance. As to the number of employees, the vendor application forms also contained questions as to the number of employees. The occupational licenses required to be submitted with the bids also advised as to the number of employees. Twelve of the seventeen bidders who were not declared non-responsive submitted conflicting information as to the number of their employees in their vendor applications, their UCT-6 forms, and their occupational licenses. As to the UCT-6 form itself, the bid specifications required submittal of the bidder's most recent form, which would normally be for the quarter ending June 30, 1999. The bid specifications, alternatively, allowed completion of a blank form for a quarter ending subsequent to bid opening and bid award, which forms might not ever be filed with the State or which might be filed with different information on them. The completion of the blank forms would not necessarily verify the information desired by the School Board. One bidder not declared non-responsive submitted a form for the quarter ending March 31, 1999, thereby not appearing to comply with either alternative. Moreover, the bid specifications required the UCT-6 forms to be completed in their entirety. Nine bidders who were not declared non-responsive submitted forms which were not completed in their entirety, missing such information as payroll amounts, dates, account numbers, and the quarter covered by the form. These bidders violated special condition numbered 3. There is no real difference between failing to submit a required form and failing to complete the form as required by the bid specifications. Failure to submit the UCT-6 form was not a material deviation from the bid specifications but rather was a minor irregularity. The School Board waived that minor irregularity by its failure to deem non-responsive those other bidders who had filed the wrong form or who had failed to complete the form. Petitioners' failure to include the UCT-6 form in their bids did not affect the price of their bids, confer upon them an economic advantage over the other bidders, or give the School Board any reason to doubt that Petitioners could perform any contract award. The School Board's acceptance of incomplete UCT-6 forms, a form for an earlier quarter, and forms containing information extending into a future time period, while rejecting Petitioners' bids for not including a form, was arbitrary and capricious. Declaring Petitioners non-responsive but accepting equally non-responsive bids was also clearly erroneous and contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Petitioner J. Ruiz School Bus Service, Inc., school bus route 4606 and awarding to Petitioner A. Oliveros Transportation, Inc., school bus route 7602. DONE AND ENTERED this 24th day of March, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 24th day of March, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jose I. Valdes, Esquire Marlow, Connell, Valerius, Abrams, Adler & Newman, P.A. 2950 Southwest 27th Avenue, Suite 200 Miami, Florida 33133-3765 Twila Hargrove-Payne, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carlos Garcia, Esquire Niurka R. Piedra, Esquire Garcia, Perez-Siam & Associates 265 Sevilla Avenue Coral Gables, Florida 33134
The Issue The issue in this case is whether just cause exists for Petitioner to terminate Respondent from his job as a school bus operator.
Findings Of Fact Petitioner employed Respondent as a school bus operator since October 26, 1988. His performance was generally satisfactory, except that he sometimes failed to inform Petitioner when he was going to miss work or be late. Respondent's performance assessment for the 1992-93 school year, which was dated March 8, 1993, states that Respondent was effective in all areas except "demonstrat[ing] an energetic and enthusiastic approach to work, avoid[ing] excessive or unnecessary use of sick/personal leave." In this area, he received an mark of "inconsistently practiced." On November 30, 1993, Reta Uhrich (now Bingmer), who was Respondent's supervisor, issued a written reprimand to Respondent. The reprimand states that he was a "no show, no call" on the morning of November 30 for the second time. The first time was the morning of November 10. Respondent wrote on the reprimand: "was sick--no excuses should have called." Respondent's performance assessment for the 1993-94 school year, which was dated March 9, 1994, reflects that Respondent was effective in all areas but the one noted the previous year and three others. He received "inconsistently practiced" under "report[ing] to work as expected, unless an absence has been authorized"; "report[ing] to work on time as determined by scheduled route schedules"; and "complet[ing] necessary reports accurately and submit[ting] them on time." Respondent wrote on this assessment: "Late to work is because of a bad tooth which is not repaired." Ms. Bingmer issued a written reprimand to Respondent at the beginning of the 1994-95 school year. Dated August 26, 1994, the reprimand states that on August 25, 1994, Respondent was 35 minutes late; on August 24, 1994, Respondent called 20 minutes after he was due at his first stop to announce that he had overslept and would come to work for his second and third routes; on August 23, 1994, Respondent did not show up or call in the morning, showed up for the afternoon runs without first calling, and promised Ms. Bingmer that he would be on time in the future. The reprimand notes that Respondent claimed each time that he had a problem with a bleeding ulcer and could not afford medication. The reprimand warns that the next offense may result in a three- day suspension without pay. Ms. Bingmer issued Respondent a written reprimand on October 4, 1994, due to Respondent's failure to report for work or telephone to report off work for the entire day of September 23, 1994, and the morning of September 30, 1994. The reprimand states that Respondent assured Ms. Bingmer that his medical and personal problems were under control and that he would be at work each day on time. The reprimand concludes by noting that Ms. Bingmer had recommended that Respondent be suspended without pay for three days, but her supervisor ordered only verbal and written reprimands. The reprimand warns that any further problems could result in a "much stronger result." On October 25, 1994, Respondent, Ms. Bingmer, and others attended a predetermination conference. Respondent assured the representatives of Petitioner that he would improve his attendance. However, on November 10, 1994, Respondent called at 6:10 am and said his car would not start. Although this was notice of his absence, the notice was late. On November 18, 1994, Respondent called and said he would be out due to a toothache. On November 29, he called again, saying he would not be in because his car would not start. On December 2, 1994, Ms. Bingmer learned that the driver's license of Respondent had been suspended. She instructed him to go to the driver's license office immediately and resolve the problem, which involved his insurance. Respondent went to the driver's license office the same day and resolved the problem. However, he did not contact anyone representing Petitioner on the following workday, nor did he show up for work. Late in the day, he left a note for Ms. Bingmer stating that he would call early the following day and see her. But he neither called nor reported to work the following day, nor the day after that. The major problem created by Respondent was that he either gave no notice when he was going to miss or be late for work, or he gave inadequate notice. With notice, Petitioner could obtain a substitute bus driver. Without notice, children were left standing at their bus stops waiting needlessly for their bus. The employment contract provides that Petitioner may terminate an employee for "just cause." Petitioner has demonstrated that just cause exists for the termination of Respondent.
Recommendation It is hereby RECOMMENDED that the School Board of Lee County enter a final order terminating Respondent. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 30, 1995. COPIES FURNISHED: Daniel H. Kunkel Kunkel Miller & Hament Southtrust Bank Plaza Suite 785 1800 Second Street Sarasota, FL 34236 Robert J. Coleman Coleman & Coleman P.O. Box 2089 Ft. Myers, FL 33902 Patrick E. Geraghty Patrick E. Geraghty, P.A. P.O. Drawer 8 Ft. Myers, FL 33902-0280
