The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' Joint Pre-Hearing Stipulation, the following findings of fact are made: Petitioner was born on March 31, 1936, in Trinidad- Tobago. He migrated to the United States in 1974. In or around May 1993, when he was 57 years old, Petitioner applied for a position as a school bus driver with Respondent and was subsequently hired. Respondent is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, and for otherwise providing public instruction and related services, including transportation services, to school-aged children in the county. Respondent provides transportation services through its Transportation Department. Jerry Klein has headed the Transportation Department (as its Administrative Director) since 1993. The Transportation Department operates eight transportation centers throughout the county. Assigned to these eight transportation centers are a total of approximately 1,530 school bus drivers, who range in age from 22 to 77, with most being over 40. The current job description for the position of school bus driver has been in effect since March 9, 1999. It provides that school bus drivers must meet the following "physical requirements" and "minimum qualifications requirements": PHYSICAL REQUIREMENTS This is light work which requires the following physical activities: sitting, standing, walking, climbing, twisting, reaching, grasping, talking, hearing and visual acuity. Heavy lifting, pushing, and pulling may occasionally be required. Work is performed indoors and outdoors and worker is subject to noise, heat, fumes and vibration. MINIMUM QUALIFICATIONS REQUIREMENTS Must hold a valid Commercial Driver's License, have a minimum of five (5) years licensed driving experience, and have an excellent driving record. Must be able to pass the examinations and tests required by the State of Florida to obtain a Class B Commercial Driver's License with a Passenger Transport Endorsement, without air brake restriction. Must have an acceptable background check. Must be able to pass a prescribed reflex test, physical examination, and drug test. Must be able to deal with stressful situations on a frequent basis. Must have completed eighth grade and have a demonstrated ability to read, write, and understand written instructions in English. High school diploma or GED preferred. Must be able to pass the Basic School Bus Training Course given by Miami-Dade County Public Schools Department of Transportation in accordance with Rule 6A- 3.0141 of the State of Florida Board of Education.[2] Good knowledge of county geography. In 1993, in response to "several media reports" that some of its school bus drivers "were driving with suspended licenses and [had] other types of problems with their driving record[s]," Respondent developed and reduced to writing criteria to be used to screen the driving records of applicants for school bus driver positions (Screening Criteria), criteria which, in all material respects, it still uses today. The document in which these Screening Criteria are set forth is entitled, "Screening of Driving Records for Prospective School Bus Drivers for M-DCPS and Private Company Drivers," and it reads, in pertinent part, as follows: * * * Each individual's transcript of Driver Record will be screened in accordance with the guidelines and criteria established by this document. The entire driving record will be checked for purposes of determining an individual's acceptability or unacceptability to drive a school bus for M-DCPS. The screening process will be conducted prior to employment for M-DCPS drivers and annually as part of the annual re-certification for all drivers operating under contract to M-DCPS. Points will be assigned for each entry on the Transcript of Driver Record in accordance with the Appendix attached to this document, and Paragraph 2 above. Individuals will not be approved to drive a school bus for M-DCPS if they have: More than three (3) district assigned points during the past year More than six (6) points during the past three (3) years More than nine (9) points during the past five (5) years or More than twenty five (25) district assigned points total, on the entire record. * * * 6. The Administrative Director, Department of Transportation, or his designee, may make exception to the guidelines above, as circumstances warrant. Drivers who are disqualified under the above guidelines may further appeal the decision to the Chief Business Officer. * * * APPENDIX DRIVING VIOLATION POINTS ASSESSED BY DISTRICT VIOLATION POINTS SPEEDING UP TO 14 MPH OVER POSTED SPEED LIMIT 3 15 MPH OR MORE, OVER POSTED SPEED LIMIT 4 IN A SCHOOL ZONE 3 DRIVING TOO FAST FOR CONDITIONS 3 * * * FAILING TO COMPLY WITH STOP SIGN 3 FAILING TO COMPLY WITH TRAFFIC INSTRUCTION/DEVICE 3 * * * IMPROPER TURNING 3 * * * SEAT BELT VIOLATION . . . . 1 CARELESS OR IMPROPER DRIVING 3 * * * 22. AT-FAULT ACCIDENT 2 * * * Note: The district assesses points under this plan for all entries, regardless of conviction status or state disposition. Although Mr. Klein, as the Transportation Department's Administrative Director, has had the authority to "make exception[s]" to these Screening Criteria, he has never done so. Petitioner worked as an hourly school bus driver from June 10, 1993, until January 1994, when he became a full-time school bus driver, a position he held for approximately seven and a half years.3 During his employment as a school bus driver with Respondent, Petitioner was involved in several vehicular accidents while on duty in his school bus. After one such accident, which occurred on August 9, 1999, Petitioner was suspended without pay by Respondent for failing to report the accident.4 The suspension began February 10, 2000, and ended March 13, 2000. Petitioner's most recent accident as a school bus driver occurred March 26, 2001. Because the accident was deemed to have been "preventable," Petitioner was directed to complete retraining before resuming his school bus driver duties. Petitioner began his retraining on May 16, 2001. He was unable to successfully complete the retraining, although given adequate time and a fair opportunity to do so. On June 5, 2001, after Petitioner had had eight days of retraining5 (one in the classroom and seven on the road), Richard Rothberg, a Coordinator II for Operations and Training with Respondent, advised Petitioner that he "wasn't meeting the qualifications" to remain a school bus driver and asked him if he "would be willing to accept a demotion to a bus aide position so that he could retain his employment with [Respondent]." Mr. Rothberg told Petitioner that if he rejected the offer of a demotion, Petitioner's "case would be referred to the OPS [Office of Professional Standards]" and "he could be terminated." Petitioner's age played no role whatsoever in Mr. Rothberg's decision to end Petitioner's retraining and give him the choice to resign from his position as a school bus driver and take a bus aide position or face the possible termination of his employment with Respondent. Petitioner opted to resign from his school bus driver position and accept a position as a bus aide rather than risk not having any job with Respondent. In his letter of resignation, Petitioner wrote that he was resigning because he had "fail[ed] driver retraining." Respondent accepted Petitioner's resignation and appointed him to a bus aide position, effective June 15, 2001, as Petitioner had requested in his letter of resignation, a position in which he has remained. In or around May 2004, Petitioner, through a union representative, John Nochi, contacted Mr. Rothberg's successor, Chris Dowda, to express Petitioner's interest in becoming a school bus driver again. Mr. Nochi, on Petitioner's behalf, asked Mr. Dowda "to check [Petitioner's] driving record to see if he would be qualified to be a school bus driver." On May 14, 2004, Mr. Dowda obtained a print out of Petitioner's driving record (as maintained by the Florida Department of Highway Safety and Motor Vehicles) and "screened it." Applying the Screening Criteria, Mr. Dowda determined, correctly, that Petitioner had accumulated a total of more than 25 district-assigned points over the period of his licensure and that he therefore was not qualified to be a school bus driver. Mr. Dowda thereafter telephoned Mr. Nochi and "told him what the results were" of the screening. Mr. Dowda had "numerous [follow-up telephone] conversations" with Mr. Nochi, who had "a lot of questions" concerning the Screening Criteria. During one of these telephone conversations, which took place sometime prior to the end of 2004, Mr. Dowda, in attempting to explain why the Screening Criteria were developed, posited the following: If there [are] bus driver[s] with a lot of citations on their record and they go out and they get into an accident and there are students injured on the bus and . . . the media gets a hold of their driving record we will see on the news, the media holding [it] up and say[ing], "Look who's driving for ou[r] district right now." Unbeknownst to Mr. Dowda, Petitioner was present in the same room as Mr. Nochi and listening on a speakerphone to what Mr. Dowda was saying to Mr. Nochi. Mr. Nochi also contacted Mr. Klein and requested him to "review the driving record of [Petitioner] and see whether it would be acceptable to bring [Petitioner] back as a school bus driver." After conducting the requested review and determining that Petitioner had "a terrible driving record with more than 25 points assessed based on a long history of driving infractions," Mr. Klein informed Mr. Nochi that he "was not prepared to bring [Petitioner] back as a school bus driver because [Petitioner] didn't meet the minimum requirements of the [S]creening [C]riteria to become a school bus driver," adding that these requirements were not "waive[d] . . . for anybody."6 Effective 2005, all school bus drivers in the state needed to have (as they still do today) a school bus driver endorsement on their commercial driver's license. That year (2005), Petitioner went to Northwestern High School to take a written test, administered by Respondent, to obtain such an endorsement, but was told that he was not eligible to, and therefore could not, take the test. Petitioner subsequently took the test at the Department of Highway Safety and Motor Vehicles driver's license office in Pembroke Pines and received a passing score. On August 23, 2005, he was issued a commercial driver's license with a school bus driver endorsement. Petitioner subsequently went to Mr. Klein and showed him the newly issued license. Mr. Klein responded to being shown the license by repeating what he had told Mr. Nochi concerning Petitioner's having "too many points on his driving record" to be qualified under the Screening Criteria to become a school bus driver with Respondent. Although he has made inquiries about the possibility of his regaining a school bus driver position with Respondent, Petitioner has not submitted an official application for such a position at any time following his demotion. Under the hiring system Respondent has developed, the filing of an application is a prerequisite to becoming a school bus driver. On March 27, 2006, following his meeting with Mr. Klein, Petitioner filed the employment discrimination charge against Respondent which is the subject of the instant proceeding. The "particulars" of the charge were described by Petitioner as follows: I believe that I was discriminated against because of my age, 69. Chris Dadow [sic] made a derogatory comment about look who's driving our school buses. I was instructed to go and get a new license, and I complied. Mr. Chris Dadow [sic] refused to give me the driving test so I [could] become a School Bus Driver. I was ultimately denied the opportunity for employment. In fact, it was Petitioner's driving record, not his age, that prompted Mr. Dowda, as well as Mr. Klein, to take the positions they did, following Petitioner's demotion, regarding his ineligibility to fill any vacant school bus driver position. The comment made by Mr. Dowda about which Petitioner complained in his charge had nothing to do with Petitioner's, or anyone else's, age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of the unlawful employment practice alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2007.
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
Findings Of Fact The School Board of Pasco County ("Respondent") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). At all times material to this case, the Respondent has had a nondiscrimination policy and a policy prohibiting sexual harassment in effect. The policies are provided to all employees, including the Petitioner, upon hiring, and are posted throughout the workplace. Denise E. Hoedt ("Petitioner") at all times material to this case was a bus driver employed by the Respondent. As of the date of the hearing, the Petitioner was on worker's compensation leave. There is no evidence that the worker's compensation leave is related to the allegations at issue in this case. When the Petitioner was initially employed by the Respondent she was assigned to a regular bus route and was stationed in the "Northwest Garage" unit of the Respondent's transportation system. After having been employed for a sufficient period of time, she was provided with a contractual right to choose her route. She chose to transport exceptional education (ESE) students. As an ESE driver, the Petitioner's immediate supervisor was Jacqueline Dennis. Ms. Dennis did not work in the same garage from which the Petitioner was based. The Petitioner has been involved in a continuing series of grievances against Mr. Valentine Gallas, a "Route Specialist" for the Respondent. The grievances, filed prior to the complaint to the Florida Commission on Human Relations at issue in this proceeding, have been directed towards her discontent with work assigned to her by Mr. Gallas. Although Mr. Gallas was not the Petitioner's immediate supervisor, as a Route Specialist located in the Northwest Garage, he had supervisory authority over the Petitioner, as did Joanne Snodgrass, another Route Specialist in the same facility. One of the prior grievances was directed towards his request that she assume responsibility for opening a large metal gate at the entrance of the bus storage compound. The complaint was resolved by an agreement that she would not be asked to open the gate. Upon being requested by a different official to drive a later route and take responsibility to close the gate, the Petitioner complied with the request. Although she did not continue to drive the later route, there is no evidence that her decision was related to the request regarding gate closure. Another grievance centered on Mr. Gallas' directive that she drive a second bus run after she had completed her initial run. Mr. Gallas apparently did not provide the Petitioner with an opportunity to use the rest room prior to the second run. The Petitioner filed a grievance about the matter which was resolved by an agreement that, prior to being asked to take an additional route, she would be provided with a rest room break. The Petitioner asserted that because Mr. Gallas assigned her to a bus with a poor driver's seat, her back was injured. There is no credible evidence to establish that the seat caused or contributed to the claimed back injury. The Petitioner suggested that the clock in the bus driver's lounge was tampered with and resulted in her being reprimanded for tardiness. There is no credible evidence that the clock was intentionally tampered with to cause the Petitioner to be reprimanded. There is no evidence that any of the prior disputes between the Petitioner and Mr. Gallas were related to the Petitioner's gender or national origin, or were a form of sexual harassment of the Petitioner. When the Petitioner was driving a regular bus route, Mr. Gallas was responsible for her work assignments. When she began to drive an ESE route, she was no longer directly responsible to Mr. Gallas. In January 1993, the Petitioner, via a union representative, contacted school board officials and voiced her dissatisfaction with Mr. Gallas' alleged behavior. Late in January 1993, the Petitioner, accompanied by the union representative, met in an interview with the school board's personnel investigator. At the interview, the Petitioner stated that she believed she had been discriminated against on account of her gender and ethnic origin, and that she had been subjected to sexual harassment by Mr. Gallas. During the interview, the investigator attempted to obtain allegations of specific conduct, but other than as stated herein, the Petitioner was unable to offer such allegations. Although during the interview, the Petitioner alleged that Mr. Gallas had made derogatory comments regarding her ethnic origin and her weight, the only specific incident of which the Petitioner spoke was Mr. Gallas' alleged remark to her, "Oh, a Cuban." She offered no context for the remark. There was no specific remark regarding weight disclosed during the interview. The Petitioner also alleged that subsequent to Mr. Gallas' purchase of beverages for a group of bus drivers, he had repeatedly said she "owed him one" in a manner which the Petitioner interpreted as sexual. The remark continued until such time as the Petitioner purchased a beverage for Mr. Gallas. Further, the Petitioner alleged that in November 1992, Mr. Gallas came into the bus drivers' lounge and handed her an offensive written statement regarding intercourse which she interpreted as a request for sex. The investigator inquired as to whether Mr. Gallas had touched the Petitioner. She replied he had not. There was no mention of any other alleged inappropriate activity by Mr. Gallas towards the Petitioner. At the conclusion of the interview, the investigator expressed her concern about the serious nature of the charges. She assured the Petitioner that there would be no retaliation for the report of the complaints. She noted that the findings of the investigation would be confidential and requested that the Petitioner refrain from discussing the allegations pending the investigation. The investigator began her inquiry the day after meeting with the Petitioner. A meeting was scheduled with Mr. Gallas and with other persons who were aware of Mr. Gallas and the operation of the Northwest Garage. As to the investigator's request that the Respondent refrain from discussing the matter, the Petitioner failed to comply with this request. The matter became fodder for discussion in the workplace. A petition was initiated by several employees on Mr. Gallas' behalf. The Petitioner attempted to initiate her own petition drive without success. The matter was viewed by some coworkers as an attempt by the Petitioner to have Mr. Gallas' employment terminated. The investigator for the Respondent viewed the Petitioner's allegations with skepticism due to the "vagueness" of the specifics. The failure of the Petitioner to comply with the request to keep the matter confidential during the investigation did little to alleviate the investigator's initial concerns about the Petitioner's credibility. Despite the continuing controversy, the school board attempted to complete its investigation of the matters about which the Petitioner had complained. In an interview with the investigator, Mr. Gallas denied the charges. He stated that the remark regarding her origin occurred in the context of a discussion between the Petitioner and another driver overheard by Mr. Gallas, at which time the remark was made. He denied making any reference to her weight. Although acknowledging that he had seen the "intercourse" card in the garage, he denied having handed it to her. He denied any sexual intent in the "owe me one" remark. Other interviews were conducted with other persons who are knowledgeable about the operations of the Northwest Garage and Mr. Gallas' employment there. The investigator was unable to substantiate the allegations. Based on a review of the Petitioner's interview and allegations, Mr. Gallas' denial, and the inability to find further substantiation for the complaints, the investigator determined that there was no reasonable cause to believe that the complaints were credible. After the investigation and determination were completed, there was a time delay in providing notification of the determination to the Petitioner. The evidence establishes that the delay was not an attempt to deprive the Petitioner of any contractual or legal right but was due to nothing more than clerical error on the part of the personnel investigator. There is no evidence that there was any harm to the Petitioner related to the delay. In May 1993, the Petitioner filed the complaint with the Florida Commission on Human Relations (FCHR) which is at issue in this proceeding. As identified in the FCHR complaint, the Petitioner's allegations are addressed as follows: The November 1992 "intercourse" card incident-- The Petitioner asserts that in November 1992, as she was seated with two other bus drivers in the driver's lounge, Mr. Gallas entered the lounge, walked to the table where the Petitioner and her coworkers sat, and handed a card titled "intercourse" to the Petitioner. The card was an offensive attempt at humor and included a sexual invitation. Of the two coworkers at the table, only one saw the card. The Petitioner refused to permit the other coworker to see the card. All of the women testified at the hearing. Although the Respondent presented the investigator's recollection of Mr. Gallas' denial of the incident, Mr. Gallas was not called by either party to testify at the hearing. The testimony of the two drivers who were at the table when the incident occurred and who testified at the hearing substantiates the Petitioner's allegation. There is no credible evidence that prior to her January 1993 complaint about the incident, the Petitioner discussed the matter with any other person. The evidence fails to establish that Mr. Gallas' behavior regarding the "intercourse" card incident, although offensive and inappropriate, caused the Petitioner difficulty in performing her job duties or any other harm or injury. Offensive touching of the Petitioner by Mr. Gallas-- The Petitioner asserts that Mr. Gallas occasionally would stand too close to her and that on one occasion, he brushed against her breasts in passing her. There is no evidence that, prior to the filing of the FCHR complaint, the Petitioner had ever complained about unwarranted or offensive touching by Mr. Gallas. Upon direct inquiry by the school board's personnel investigator, the Petitioner denied that she had been touched by Mr. Gallas. The assertion is not supported by credible evidence. Mr. Gallas' sexual requests of the Petitioner-- There is no credible evidence that Mr. Gallas made any verbal sexual requests of the Petitioner. The only incident which may be viewed as a sexual invitation relates to the "intercourse" card addressed previously in this Recommended Order. The Petitioner "owed" Mr. Gallas-- The evidence establishes that at a luncheon attended by coworkers, Mr. Gallas purchased beverages for the group and made a statement to the effect that the recipients "owed him one." Mr. Gallas would occasionally repeat his "you owe me one" statement to the Petitioner. There is no evidence that the statement was made in a sexual manner or that such was intended by Mr. Gallas. Eventually, the Petitioner purchased a beverage for Mr. Gallas, stating "now I don't owe you one." After being bought a drink, Mr. Gallas no longer made the remark. Verbal slurs about the Petitioner's national origin-- The Petitioner is of Mexican, Spanish and Cuban origin. The Petitioner asserts that on one occasion, she became embroiled in an argument with Mr. Gallas during which he remarked, "Oh, You're nothing but a Cuban." There is no other evidence to support her assertion. The evidence is insufficient to establish that Mr. Gallas made such remarks to other employees or that such conversation was typical of him. The assertion is not credible. Terms and conditions of her employment-- The Petitioner asserts that the "terms and conditions' of her employment were different from other bus drivers with responsibilities similar to hers. The evidence fails to support the assertion. Drivers transporting ESE students generally have fewer students to transport than drivers of regular routes. It is possible that an ESE driver may transport only one or two children. ESE drivers often complete their routes before drivers of regular routes. Because the Petitioner was responsible for transportation of ESE students, her route was often completed earlier than other bus drivers. ESE drivers who have completed their routes may "stay on the clock" in which case they may be asked to provide assistance in clerical tasks or to complete other bus routes. In the alternative, drivers may "punch out" and leave. Additional work is assigned to drivers by the Route Specialist in the garage from which the drivers are based. Mr. Gallas was the Route Specialist in the garage from which the Petitioner was based. The Petitioner frequently remained on the clock and was accordingly assigned additional work to do. There is no evidence that any drivers who remained "on the clock" were treated any differently that was the Petitioner. On one afternoon, the Petitioner, suffering from back pain, returned from her route and laid down in her bus. Mr. Gallas came onto the vehicle and told her that she needed to be working. He suggested that she could be made to sweep the bus compound if she did not find other duties to complete. The evidence fails to establish that the Petitioner, who was on the payroll at the time she was resting in her bus, informed Mr. Gallas that she was not feeling well. The evidence fails to establish that Mr. Gallas' actions upon discovering the Petitioner at rest in her bus were related to her gender, national origin, or were a form of sexual harassment. There is no evidence that other drivers were permitted, while on duty, to rest in their busses. As previously addressed, on one occasion, Mr. Gallas directed the Petitioner, immediately upon her return from her normal bus run, to perform additional transportation duties. Mr. Gallas did not provide the Petitioner with an opportunity to use the rest room before beginning her second run. Subsequent to her complaint to appropriate authorities, Mr. Gallas was directed to permit the Petitioner to use the rest room before assigning additional responsibilities to her. Although Mr. Gallas' lack of concern about the Petitioner's personal needs was inconsiderate, the evidence fails to establish that the incident was related to gender, national origin, or were a form of sexual harassment. The Petitioner also asserts that other drivers or their spouses are permitted to bring personal vehicles into the bus compound and that she was not. The evidence fails to establish that other drivers or their spouses are routinely permitted to bring personal vehicles into the compound. The Petitioner complained that during a heavy storm one day, her husband came into the compound to pick her up and was asked to take his vehicle back outside the compound. On that day, Mr. Gallas offered to walk the Petitioner with an umbrella to her car but she declined. The Respondent's inquiry into the January 1993 grievance-- The Petitioner asserts that the school board's inquiry into her January 1993 grievance was incomplete and that the determination that the grievance was unfounded was inappropriate. The evidence fails to support the assertion. The greater weight of the evidence establishes that the Petitioner's complaints, as they were communicated to the school board, were as fully investigated as was possible. The Petitioner's complaints to the Board did not include allegations related to unwarranted touching, according such allegations were not investigated. Further, the investigation was hampered by the spread of rumor and innuendo throughout the workplace regarding the Petitioner's sexual harassment allegations. Although the evidence is not entirely clear as to where responsibility lies for the generation of the rumor and internal bickering, school board personnel involved in the investigation specifically directed the Petitioner to refrain from discussing the allegations pending the board's investigation. As previously stated, she failed to comply with this request. Coworkers of the Petitioner were also involved in discussion about the pending investigation. At that point, the workplace appears to have become divided into factions and the board's investigation was compromised. The evidence establishes that the board's investigation of the Petitioner's grievance was conducted appropriately and that persons with direct knowledge related to the allegations (including Mr. Gallas who was inexplicably not called by either party to testify at the hearing) were contacted and interviewed. Although the investigation became compromised and was completed prematurely, there is no evidence that based on the information obtained by board personnel, the board's determination that the grievance was unfounded was outside the authority of the board or unsupported by the information which the board had obtained The Petitioner seeks to be "reimbursed for all the pain and suffering I have endured...." The evidence fails to establish that such an award is appropriate. The Petitioner offered no evidence related to "pain and suffering" or which would establish that such injury, if present, is related to employment conditions. The Petitioner also seeks to be reimbursed "for any and all money which was used to seek legal consultation." There is no evidence that the Petitioner, who has represented herself throughout this proceeding, has incurred any expenses related to legal consultation regarding this complaint; therefore such an award is not appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed in this case. DONE and RECOMMENDED this 9th of June, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6652 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by the greater weight of credible and persuasive evidence. Proposed finding of fact paragraph six continues for approximately seven pages and consists largely of recitation of conflicting testimony. The testimony has been reconciled as indicated in this Recommended Order. The proposed finding is rejected as subordinate, unnecessary, immaterial and not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 8-9. Rejected, subordinate. 10-16. Rejected, unnecessary. This unnumbered proposed finding consists of "examples of inappropriate sexual behavior" by Mr. Gallas and is treated as follows: Rejected as not supported by the greater weight of credible and persuasive testimony: a. Rejected as irrelevant: c, b, e. Rejected as immaterial: d, f, g, h. This proposed finding consists of "examples of inappropriate sexual behavior involving Mr. Valentine Gallas and Ms. Denise Hoedt" and is treated as follows: Rejected, there is no credible evidence that the offer of an umbrella was "inappropriate sexual behavior b, k. Rejected, immaterial l, m, n, o. Accepted as modified. Remainder is rejected as not supported by the greater weight of credible and persuasive evidence. Rejected as not supported by greater weight of credible and persuasive evidence: a, g. Rejected, subordinate: d, h, i. Rejected, irrelevant: f. Rejected, not supported by the greater weight of credible and persuasive evidence. There is no credible evidence that the Petitioner or her husband have been subjected to restrictions regarding personal cars within the bus compound which are not generally applicable to all drivers, except when specific circumstances require otherwise. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to Pyles' attendance at meeting, unnecessary. Rejected as to note taking by the investigator, unnecessary. 12-13. Rejected, unnecessary. 16-18. Rejected, subordinate. 23-33. Rejected, subordinate, unnecessary. 34. Rejected as to ulterior motives of Petitioner, unnecessary. COPIES FURNISHED: Thomas E. Weightman, Superintendent Pasco County School System 7227 Land O' Lakes Blvd. Land O' Lakes, Florida 34639-2805 Denise E. Hoedt 11605 U. S. Highway 41 Spring Hill, Florida 34610 Mark Graves, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether just cause exists to terminate Ms. Ivey from her employment with the Pinellas County School Board.
Findings Of Fact In 2005, Ms. Ivey was hired by the School Board to work as a school bus driver (bus driver). The position of school bus driver is covered by the 2012-2015 Collective Bargaining Agreement between the School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). One of the many requirements to operate a Pinellas County school bus is to undergo a medical/physical examination every year. Among the physical requirements, bus drivers are to maintain at least 20/40 vision in each eye (with or without corrective lenses). On Wednesday, January 23, 2013, Ms. Ivey underwent her yearly physical examination (exam). As a result of this exam, Ms. Ivey's "Work Status" was "PE on hold," meaning Ms. Ivey was not able to work as a bus driver until some corrective measures involving her eyesight were obtained. Ms. Ivey completed her morning bus routes prior to her exam on January 23. After her exam, Ms. Ivey called in sick and did not complete her afternoon school bus routes. On January 24, Ms. Ivey completed both her morning and afternoon bus routes without incident. However, she took sick leave for the remainder of January 2013 (five work days). Ms. Ivey's first day back from her sick leave was February 4, 2013. Each school bus is equipped with a global positioning system (GPS) monitoring device. Once the school bus is turned on the GPS automatically records the school bus position every 30 seconds. The GPS also records other activities that the school bus performs, e.g., when the amber caution lights are turned on or off, when the red stop lights are turned on or off, when the entrance door opens or closes, etc. Because of the cost of fuel, the School Board's policy is that no school bus idles for more than five minutes. If a bus must idle for more than five minutes, the bus driver is required to turn off the bus until it needs to move. Each school bus is required to stop at each assigned bus stop whether or not a student is present. This is to maintain the published schedule for subsequent school bus riders. Each school bus is also equipped with a two-way radio for constant communication with Petitioner's transportation dispatchers. In the event of an incident (or accident), there is an additional emergency channel for use by the dispatcher and the affected school bus driver. Prior to each school year, school bus drivers are provided training in how to handle an incident (or accident). When an incident occurs, the driver is to immediately contact the transportation dispatcher, remain at the scene of the incident, ensure the safety of the students, and cooperate fully with the investigation. The bus driver is to complete an incident report and turn it in to the transportation division before the end of the incident day. The school bus that Ms. Ivey drove on February 4, 2013, was equipped with the two-way radio and the GPS. Ms. Ivey's published/authorized school bus route (for the middle school pick-up) started at 8:15 a.m. each morning when she was to pick up her riding assistant, Courtney McClendon,3/ at 102nd Avenue and Seminole Boulevard. This stop was in a large parking lot, close to a Little Caesar's restaurant (restaurant). The second bus stop, where the first student was to be picked up, was located at 97th Street North and Lake Seminole Drive East (corner location). Without the School Board's permission or authorization, Ms. Ivey unilaterally changed her school bus route to begin with the student pick-up at the corner location. On February 4, Ms. Ivey began her middle school bus route at the corner location. According to the GPS, Ms. Ivey entered the corner location neighborhood at 8:32 a.m., and could not have been at the designated corner location bus stop at 8:18 a.m. The student rider was not at the corner location when the school bus arrived. There was no indication, via the GPS, that either the amber caution or red stop lights were activated for this stop, or that the entrance door opened or closed to allow a student to enter the bus. Ms. Ivey turned the school bus onto 97th Street and stopped at the red light at 102nd Avenue (stop light corner). As Ms. Ivey was looking left (in order to turn right), she heard a knock on the school bus door, but did not see the student. Ms. Ivey completed the right-turn onto 102nd Avenue West and then, in her right rear-view mirror noticed a student falling down. Ms. Ivey did not immediately stop the school bus, but drove to the restaurant approximately two minutes away. There, Ms. Ivey turned on her amber lights and opened the door for Ms. McClendon to board the school bus. While at the restaurant, Ms. Ivey radioed Petitioner's transportation dispatcher that she might have hit a student. Ms. Ivey left the restaurant and drove back to the corner location. Despite having a two-way radio on board the school bus and repeated attempts by the dispatcher to contact her, Ms. Ivey and the dispatcher failed to communicate again for over 45 minutes. Upon notification of the incident, the transportation dispatcher switched to the emergency frequency; however, Ms. Ivey stayed on the regular two-way radio frequency. Two transportation supervisors were immediately dispatched to investigate the incident at the restaurant, as this was the location where the incident was reported. Once they arrived, the supervisors were unable to locate the school bus, Ms. Ivey, or Ms. McClendon (the trio) at or near the restaurant. In an effort to locate the trio, the supervisors traveled to several more school bus stops, but only found students waiting for the school bus.4/ After searching for over 45 minutes, the supervisors finally located the trio at the corner location. At that time the transportation supervisors determined that the stop light corner location was where the incident actually occurred. One week after the incident, on February 11, Ms. Ivey completed and turned in the "DRIVER'S REPORT OF INCIDENT." Petitioner's field operations supervisor, Ms. Cross had to make repeated requests to Ms. Ivey to get her to turn in the report. On three separate occasions, Ms. Ivey was noticed to appear at the Office of Professional Standards to answer questions regarding the January medical issue and the February 4th incident. At the meeting on February 20, 2013, Ms. Ivey refused to answer questions about either matter. During the second meeting on February 28, shortly after the meeting began, Ms. Ivey asked to use the restroom, left the room, and never returned to complete the meeting. Although she was noticed for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey did not arrive for that meeting until after 3:00 p.m. During this third meeting, Ms. Ivey again refused to answer questions about either matter. Ms. Ivey's employment disciplinary history with the School Board is as follows: 02/08/10 Ms. Ivey received a "Conference Summary" for failing to correct performance deficiencies; 02/18/10 Ms. Ivey received a Conference Summary" for failing to comply with board policy, state law, or appropriate contractual agreement; 10/20/11 Ms. Ivey received a "Caution" for failing to comply with board policy, state law, or the appropriate contractual agreement and misconduct; 05/23/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; 12/15/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; and 02/20/13 Ms. Ivey received a "Conference Summary" for failing to perform the duties of the position and failing to correct performance deficiencies. Despite repeated opportunities to provide her version of the events, Ms. Ivey declined to present her case in a manner that would warrant serious consideration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner terminate Ms. Ivey's employment as a school bus driver as a consequence of her repeated violations of School Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Ms. Ivey's termination from employment as a school bus driver. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 20th day of August, 2013.
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
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 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 issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue is whether Zelma Goss should be dismissed from her position as a school bus driver for the St. Johns County School Board for the reasons stated in the Formal Petition of Charges.
Findings Of Fact Zelma Goss has been employed as a bus driver by the School Board of St. Johns County since November 1975. During that time, she has had an unblemished record of performance as a bus driver. At about 3:15 p.m. on August 27, 1990, Ms. Goss was completing her afternoon bus route when she heard Debra Sapp call for help over the radio. Ms. Sapp ordinarily does not drive a bus because she was the Route Specialist. On this day, the first day of school, Ms. Sapp had to pick up a bus load of students who had been returned to Ketterlinus Middle School because of severe misbehavior on the bus. Ms. Sapp had to stop the bus one time to separate two boys. A few minutes later the bigger boy returned to the front of the bus and began beating the smaller boy with his fists. Ms. Sapp stopped the bus and tried to stop the fight. She was unable to separate the boys, and as the beating continued she radioed for help and requested assistance from the Sheriff's Department. A couple of minutes later she again radioed for help. After there was no response from other drivers, Ms. Goss contacted Ms. Sapp and asked if she could help. After she finished her route, Ms. Goss went to the location of Ms. Sapp's bus and noticed that there were a number of school administrators and law enforcement officers present and that the students on Ms. Sapp's bus were hanging out the windows, yelling obscenities and otherwise acting completely out of control. Ms. Goss, who was familiar with these students because she had transported them during previous years, got on the bus and attempted to gain control of the students' behavior. She succeeded in calming all of the students down except Joe Bailey, who refused her directions and would not come to the front of the bus to sit. Joe Bailey was removed from the bus by a Deputy Sheriff and instructed to behave. At approximately 4:00 p.m., Ms. Sapp said that she believed that they could proceed to transport the students home and Ms. Goss volunteered to drive. Ms. Sapp went back and sat toward the back of the bus. Joe Bailey was put back on the bus by a Deputy Sheriff and instructed to behave. Ms. Goss had had problems with several of the students on the bus in the past, particularly with Joe Bailey. Ms. Goss' reporting of Bailey's misconduct had resulted in his being suspended from school in the past. The bus route continued uneventfully until Ms. Goss reached the corner of D and 5th Street, at which point the students began to stand up and holler when they saw a brown pickup truck nearby. The truck was driven by a former student, Jason Schofield, who had been a troublemaker. At this point in time, the bus was stopped at the stop Joe Bailey normally exited. Because she was keeping her eye on Mr. Schofield's truck, Ms. Goss did not notice as she pulled away from that stop that Joe Bailey had not gotten off. While she was discussing this matter with Ms. Sapp and stating that Mr. Bailey could get off at the next stop, Ms. Goss noticed Mr. Schofield's truck pulling in behind the bus, tires squealing, having come out so fast that he cut off a white car following the bus. At the next stop, Ms. Goss and Ms. Sapp told Joe Bailey several times to get off the bus. As Mr. Bailey finally moved to leave the bus, he called Ms. Goss a bitch, struck Ms. Goss firmly in the back of the head, and quickly ran off the bus. As she was struck, Ms. Goss instinctively threw up her hands in protection and noticed Bailey making obscene gestures at her and calling her names. Bailey walked in front of the bus, across the road and, standing on the left edge of the road, continued to make obscene gestures and comments at Ms. Goss and dropped his pants, "mooning" her. As she started the bus moving forward, Ms. Goss turned the steering wheel quickly to the left and then immediately back to the right in an instinctive reaction to get Bailey's attention. This movement of the steering wheel lasted approximately two seconds. At the same time, Ms. Goss was yelling out of the window to Bailey that she intended to press charges against him. Ms. Sapp described the motion of the bus by saying, "it went forward very wiggly." The bus quickly crossed the middle line by eight to ten inches and returned to the right lane. Ms. Goss did not steer the bus at Bailey, nor did she intend to strike him with the bus. Furthermore, the bus never came anywhere near hitting Bailey and did not pose any real danger to him. As Ms. Goss was continuing to the next stop, Ms. Sapp began screaming in the back of the bus, "Don't stop." Ms. Goss stopped the bus at the next stop anyway and, as she opened the door, Jason Schofield came up to the driver's window on the left hand side of the bus and began beating on the side of the bus. Schofield said to her, "Lady, what is your problem?" Ms. Goss stated that she did not have a problem and did not say anything else to him. Mr. Schofield returned to his truck and pulled out around the bus, speeding through the stop signal before all of the students had completely crossed the road in front of the bus. Ms. Goss completed the bus run and returned to where she had left her bus. In discussing the situation with representatives of the administration, Ms. Goss admitted swerving the bus, but she did not state that she had swerved the bus at Bailey or in an effort to strike Bailey. For his actions that day, Joe Bailey was expelled for the entire school year. Two students and a passenger in Schofield's truck told their versions of what occurred that day. All three were simply unbelievable and their stories were entirely lacking in credibility. Their testimony is rejected. The passenger's story is impossible and clearly false. The only two people actually on that bus who were credible witnesses were Ms. Goss and Ms. Sapp. Neither testified that Ms. Goss actually swerved the bus at Joe Bailey in any manner which placed him in any danger. St. Johns County School Baord Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows: (11) Relationship to other personnel (c) Pupils (1) The bus driver shall be responsible for the safety of the pupils on his bus and shall be constantly on the alert for any condition that would endanger their safety. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students. A bus driver's primary responsibility is to maintain the safety of the students.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order exonerating Zelma Goss from the alleged misconduct and immediately reinstating her to her position as a school bus driver. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5887 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of St. Johns County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4-6(24-26); 8(2); and 11(21). Proposed findings of fact 7, 9, 10, 12-16, 23-28, and 32 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1, 2 and 29 are unnecessary. Proposed findings of fact 17, 18, 20-22, and 30 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 19 and 31 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Zelma Goss 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2&5); and 3-17(6-20). COPIES FURNISHED: Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street Post Office Box 40089 Jacksonville, FL 32203 Thomas W. Brooks Attorney at Law Post Office Box 1547 Tallahassee, FL 32302 Otis A. Mason, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, FL 32084 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
