The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, 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 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 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 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
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Seminole County School Board (Respondent) engaged in disparate treatment of Valeria Gaskin (Petitioner) such that the treatment of Petitioner constituted gender discrimination that resulted in a constructive discharge of Petitioner from her position with the school district.
Findings Of Fact Petitioner is a female who was hired by Respondent on November 25, 1991, as a school bus driver. At all times material to this case, Petitioner’s performance of her duties as a school bus driver relate to the ultimate issues of law and fact to be resolved. The employment relationship between Petitioner and Respondent was governed by a Collective Bargaining Agreement entitled “Agreement with the Seminole County Bus Drivers’ Association, Inc. and the School Board of Seminole County (union contract).” Respondent is the entity charged by law to operate the School District of Seminole County, Florida, and in that capacity entered into the union contract. Petitioner was charged with the responsibility of reading the union contract and complying with its terms. Petitioner acknowledged that she was directed to review the contract and familiarize herself with it not less than annually. The union contract required Petitioner to comply with school board policies related to her employment duties. Kenneth Lewis is Respondent’s Director of Transportation under whose leadership all school buses are operated and maintained. In the structure of the Transportation Department, Mr. Lewis is followed by Julie Murphy, Assistant Director of Transportation, who, in turn, supervises Area Managers who perform the daily supervision of bus drivers. At all times material to this matter, Kathy Dent was the Area Manager under whom Petitioner served. It is undisputed that Respondent’s policy prohibits the use of cell phones while driving a school bus. All school bus drivers are made aware of the policy and the policy is reiterated in the Transportation Handbook (handbook) and is discussed repeatedly throughout the school year during department meetings. Petitioner acknowledged that she was provided a handbook and knew that Respondent’s policy prohibited the use of cell phones by school bus drivers while on a school bus. On or about October 3, 2007, Ms. Dent met with the bus drivers under her charge (including Petitioner) to remind them of the policy against cell phone use while on school buses. On November 30, 2007, Ms. Dent met with Petitioner individually to advise her again that cell phone use was not permitted while driving a school bus. On January 17, 2008, Petitioner was involved in a vehicular accident and was talking on a cell phone at the time of the crash. Petitioner acknowledged that she was using a cell phone while driving on January 17, 2008, and that such use violated school board policy. In fact, because Petitioner’s school bus carried a digital video camera that recorded Petitioner’s actions on January 17, 2008, Petitioner knew that she could be terminated for cell phone use while driving a school bus. More specifically, at the time of the accident the video captured Petitioner exclaiming, "I’m going to lose my job because I’m on the cell phone." Subsequent to the accident Petitioner was on workers’ compensation/leave but returned to work to face a five-day suspension without pay for her violation of the cell phone policy. The letter advising Petitioner of the proposed punishment clearly indicated that the recommendation for a five- day suspension without pay from the Transportation Department would be forwarded to the school superintendent for review and action. The school superintendent accepted the recommendation and Petitioner was advised that she would serve the unpaid suspension on May 13, 14, 20, 21, and June 3, 2008. These were the first dates available after Petitioner returned to work. On May 7, 2008, a date that Petitioner was driving her bus on her designated route, a student complained that an ipod had been stolen. To attempt to solve the complaint, a law enforcement officer requested that the Transportation Department pull the video from Petitioner’s bus to see if it could reveal who might have taken the device. To that end, Assistant Director Murphy contacted Ms. Dent to ask her to retrieve the video and review it for the purpose requested. Ms. Dent pulled the video hard drive from Petitioner’s bus and viewed the footage for the purpose directed. Ms. Dent discovered conduct she had not expected. First, the video clearly showed that Petitioner continued to use her cell phone while on the school bus. Even in the face of her impending suspension, Petitioner disregarded the school board policy and the directives from her supervisor. Petitioner continued to talk on a cell phone while on the school bus. Second, the video clearly showed unbecoming conduct between Petitioner and another school bus driver, William Boone. During the video Mr. Boone can be seen approaching Petitioner while she is seated at the driver’s position, place his hand and arm under her skirt for an extended period of time, and then later giving her an unspecified amount of money before departing. This conduct occurred while Petitioner was in line awaiting the start of her bus duties. Students were not on the bus at the time. Given the unexpected discoveries on the video, both Petitioner and Mr. Boone were called to the transportation office to meet with Mr. Lewis. Beforehand, however, the video from Mr. Boone’s bus was retrieved to determine if any inappropriate conduct could be seen on it. The video did not disclose any such conduct. Mr. Boone was not observed using a cell phone while on his bus and no additional unbecoming conduct was depicted. On May 9, 2008, a meeting was conducted with Petitioner, Ms. Murphy, Ms. Dent, and Mr. Boone. Later Mr. Lewis joined the group. Petitioner and Mr. Boone were advised that their unbecoming conduct had been captured by the bus video. Additionally, Petitioner was advised that her continued use of a cell phone while on the school bus had also been shown on the video. The video spoke for itself. The video contained irrefutable evidence of the conduct described above. Petitioner and Mr. Boone were given the opportunity to see the video for themselves. Both employees displayed embarrassment and concern. Mr. Lewis advised Petitioner that her continued use of the cell phone was in violation of the school board policy and advised both employees that the unbecoming conduct that appeared to be of a sexual nature was also not acceptable. At some point Petitioner claimed that she and Mr. Boone had been involved in a romantic relationship for an extended period of time. Mr. Boone expressed concern that his wife would find out about the incident. Mr. Boone denied that he was engaged in sexual conduct but accepted that it appeared that way. Further, Mr. Boone who held a previously untarnished personnel record did not want to lose his job. Mr. Lewis advised both Mr. Boone and Petitioner that he would likely recommend termination for both of them. He did not ask for their resignations, did not attempt to intimidate them in any manner, but expressed concern at their lack of judgment. As to Petitioner, since the video depicted her continued use of the cell phone (an act not applicable to Mr. Boone), Mr. Lewis expressed serious issue with Petitioner’s behavior. Nevertheless, no one demanded that Petitioner resign her position with the school district. Later in the day, Petitioner and her union representative met with Mr. Lewis to review the allegations. Since Mr. Lewis did not change his position and the union did not seem supportive of her cause, Petitioner became upset. Ms. Murphy offered to speak to Mr. Lewis on Petitioner’s behalf to see if she would be eligible for another employment position within the school district. Petitioner was afforded additional opportunities to meet with her union representative and to determine what, if any, response she would make regarding the allegations. At that point in time, Petitioner knew or should have known that the conduct depicted on the bus video would lead to the recommendation from Mr. Lewis to the school superintendent that Petitioner’s employment as a bus driver be terminated. Petitioner knew or should have known based upon the previous disciplinary action against her that her supervisors could not take disciplinary action against her based upon their authority. Moreover, for Petitioner to be terminated, the school superintendent would have to make the recommendation to the school board for its action. In this case, that recommendation never happened. Instead, Petitioner submitted a letter of resignation to Ms. Murphy. Additionally, Petitioner stated to Ms. Murphy that she did not want Ms. Murphy to look for another employment opportunity within the school district for her. Petitioner’s letter of resignation selected May 30, 2008, as its effective date. It is undisputed that Petitioner continued to use a cell phone in violation of the school board policy despite being aware of the consequences for violation of the policy. Mr. Boone also faced disciplinary action for his part in the recorded conduct. As previously indicated, Mr. Boone had an unblemished record with the school district prior to the conduct described in this cause. He had worked for the school district almost 20 years without serious incident of any kind. Ultimately, Mr. Reichert, the Executive Director of Human Resources and Professional Standards for the Respondent, determined that there was insufficient evidence against Mr. Boone to recommend his termination to the school board. Instead, Mr. Boone was suspended without pay for five days. Mr. Boone did not challenge that decision and duly served his suspension. Mr. Boone did not admit that he had fondled Petitioner but did acknowledge that his conduct was unbecoming a school board employee. While more direct in admitting what occurred between Mr. Boone and herself, Petitioner also acknowledged that their behavior was inappropriate. Petitioner argues that both employees should have been treated similarly. Further, Petitioner maintains that Mr. Boone received better treatment, that is to say, less severe disciplinary measures, than she. Petitioner claims that her resignation was influenced by gender discrimination and ultimately a constructive discharge based upon the disparate treatment she received when compared to Mr. Boone. Petitioner did not file a complaint against the school board at the time of the incident claiming that her resignation was being coerced or was involuntarily tendered. At the time of resignation, Petitioner did not know what disciplinary action would be taken against Mr. Boone. Additionally, Petitioner knew or should have known that she could contest any disciplinary action brought against her and that she would be entitled to a hearing. Finally, Petitioner knew or should have known that her union could advise her and participate (as guided by their decision) in any disciplinary action against her based upon the terms of the union contract. Petitioner did not attempt to withdraw her letter of resignation prior to its effective date. Petitioner and Mr. Boone are no longer on friendly terms. Petitioner timely filed her claim with the FCHR seeking relief based upon gender-related disparate treatment. She maintains that conditions of her job environment constitute a constructive termination of her employment with Respondent. FCHR issued its determination of no cause and Petitioner timely pursued the instant administrative action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim for relief as she was not treated in a disparate manner, did not experience a hostile work environment, and did not establish that she was qualified to continue her position as a bus driver for Respondent. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2010. COPIES FURNISHED: Serita D. Beamon, Esquire Seminole County School Board Legal Service Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Jerry Girley, Esquire The Girley Law Firm 125 East Marks Street Orlando, Florida 32803 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 Bill Vogel, Ed.D. Superintendent Education Support Center 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. 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 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
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 Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
Findings Of Fact Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff. For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years, Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints. In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school. In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began videotaping the director from the street to document what Respondent viewed as illegal behavior. The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school. However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds. Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian. Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information. Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands. While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids, who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year. The problem with the school bus driver began in 2002. Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus. Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored by the superintendent, Respondent contacted a school board member and asked for a meeting. Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation. The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children. After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop cutting through the occupied classroom--a directive that Respondent repeatedly ignored. Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington. On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting. The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations. Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them. Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial. Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem. By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70. By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment. Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 25th day of October, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004. COPIES FURNISHED: John Padget, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott E. Siverson Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Scott C. Black Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Diane Scott Post Office Box 501586 Marathon, Florida 33050
The Issue Whether the School Board should terminate or take other disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Joe Thomas Alford, Jr., started working for the Bay County School Board in 1980, as a substitute school bus driver. His first full-time position with the School Board was as a "gasoline attendant," a position he assumed in 1981. After Larry Daniels became superintendent of transportation in July of 1985, he granted Mr. Alford's request to be permitted to resume driving a school bus. By all accounts, Mr. Alford did a good job as a full-time bus driver through the end of the school year 1986-87, except for the day he received a speeding ticket while driving a school bus. On another occasion, he exhibited great courage, even heroism, as one of the drivers in a convoy returning from an athletic contest. When the lead bus had an accident that made it impossible for students to get out of the bus in the usual way, Mr. Alford climbed in through a window and kicked out the emergency door, leaking gas tank notwithstanding. 1987-88 On the morning of October 16, 1987, Mr. Alford failed to report for work to drive school bus No. 340 on its three accustomed runs, necessitating the tardy dispatch of another driver. Later, in response to Mr. Daniels' questions, he explained that Harry Wells, a substitute school bus driver, had agreed to drive for him on the morning of the 16th (among other times), with the understanding that Mr. Alford would drive on a field trip for Mr. Wells. It was to an apparent misunderstanding that Mr. Alford attributed his absence without giving notice or arranging for a substitute on October 16, 1987. At the time, school board procedure required a bus driver who was to be absent for any reason to arrange for a substitute, as Mr. Alford apparently thought he had done, and to report the arrangement to the payroll clerk at the office of the superintendent of transportation. But the agreement went unreported, and no approval of the exchange was ever obtained. On October 26, 1987, Mr. Daniels, then superintendent of transportation, and Patricia Holland, route manager for routes including those Mr. Alford drove, Harry Wells and Mr. Alford gathered to discuss the lack of coverage on October 16, 1987. Mr. Alford told everybody present about his plan to drive on a field trip November 6, 1987, which would necessitate his missing the afternoon runs that day. He said (and Mr. Wells was there to deny it, if it had not been true) that Mr. Wells had agreed to substitute for him on the afternoon of November 6, 1987. Eventually this information reached Janet, who logged in Mr. Wells as a substitute for the afternoon runs on November 6, 1987. On the morning of November 6, however, Mr. Alford failed to appear, again without giving notice and without arranging for a substitute. Again it was necessary to make belated arrangements for another driver. Later that morning, Mr. Alford telephoned to report that his wife had locked him out of his house, and that he had lost access to his personal effects. He said that personal problems had prevented his driving that morning, and explained that, without clothes, he would be unable to drive on the field trip that afternoon, as well. In the afternoon, a substitute drove in his stead, without any report of inconvenience to anybody who went on the field trip. On Monday, February 8, 1988, somebody called from Mowat Junior High School with word that school bus No. 340 had not arrived as of quarter past two that afternoon. Ordinarily, and according to schedule, the bus arrived at the school by two o'clock, was loaded by five past, then left Mowat on the first of three runs the bus made each afternoon. When the report that school bus No. 340 had not arrived at Mowat reached the transportation office, Mr. Carter looked in the bus barn out back and saw that the bus was still there. He himself, despite his supervisory position as route manager for the Rutherford district, made two of the three runs for which Mr. Alford was responsible, while another driver drove children home from Hiland Park school. At no time on Monday afternoon did Mr. Alford communicate with the transportation office or with any of his supervisors or with anybody else employed by the school board. When he reported to work on Tuesday morning, he set out in school bus No. 340, without speaking to anybody in the transportation office. His supervisor, Patricia Holland, called Mr. Griffin, the assistant principal in charge of loading and unloading buses at Mowat and asked him to tell Mr. Alford to telephone. Later in the day Mr. Alford did call. He said he had missed work the afternoon before because, coming back from Tyndall Air Force Base, he had had a flat tire. He said he had given a hitchhiker (who he purportedly picked up just before the problem with the tire) 50 cents for a telephone call and asked him to call the school board's transportation office to say he could not get to work. He also said that he was worried about his wife and believed that she had a tumor in her arm. But nobody had telephoned the day before and, for the third time, respondent was orally reprimanded for not reporting for work and failing to give notice beforehand. At a meeting with his supervisors later in February of 1988, Mr. Alford declined to sign a document reciting these three lapses in his attendance record, although assigning the wrong date to one of them. No contemporaneous, independent, written records of counseling on October 16 and November 6 were prepared. On the morning of April 7, 1988, Mr. Tucker of Mosley High School called at half past seven to report that school bus No. 340 was late. As he spoke, it arrived, although it had been due at 6:55 a.m. Unmollified, Mr. Tucker complained that such a late arrival was disruptive because a number of the children ate breakfast at the school and had to be fed, even if they were late. Respondent's supervisors discussed these matters with him that day, and a record was made of the counseling on April 7, 1988. 1988-89 Before students returned for the next school year, all bus drivers hired for the 1988-89 term attended a meeting. In the future, the school bus drivers were told, they should report to the route manager for their district in an emergency or if, for some other reason, they would be unable to appear for work. Rather than making arrangements themselves, they were advised, they should let the route manager contact a substitute. On the morning of October 12, 1988, at quarter of seven, Clarice Rehberg, the route manager for the Bay High School District (which is not the district in which Mr. Alford's route was located) received a telephone call from Mr. Alford, who said that he was in Pensacola, and that his car had broken down. He also told her that school bus No. 340 was in the shop for repair, so that a substitute driver would need another bus. Finally, he let her know that the first scheduled pickup was to have been five minutes earlier at the cemetery on 17th Street. Despite Ms. Rehberg's prompt action, school children on all three runs to Mosley and Hiland Park were late for school that day. At all pertinent times, school bus drivers, including substitutes, were required to make a pre-trip inspection, which sometimes takes fifteen minutes, before driving a school bus in the morning. The following morning at about five o'clock Ms. Rehberg received a second telephone call from Mr. Alford, who again reported that he was calling from Pensacola. He said that he had called Harvey Childress in hopes that Harvey would substitute for him that morning, but that Harvey told him that he was already driving. As the "barn book" reflected, Ms. Rehberg had already scheduled Mr. Childress to drive Mr. Alford's route, morning and afternoon, just as he had done the day before. It was just as well Ms. Rehberg had the foresight to arrange for Mr. Childress to drive that afternoon because Mr. Alford never showed up. On Thursday, October 13, 1988, at about eight o'clock in the morning, Mr. Enterkin, who also drove a school bus for the Bay County School Board, spotted Mr. Alford and two friends in a car waiting at a stop sign. During the ensuing conversation, Mr. Alford told Mr. Enterkin that he was taking the rest of the week off. He also said something about having to go to Pensacola because he could not get the lights fixed on his new car. On Thursday afternoon, Mr. Alford telephoned Mr. Conway, the new supervisor of transportation, telling him that he was at a service station in Pensacola waiting for money to be wired to fix his car. On October 14, at about eight o'clock in the morning, Mr. Alford called and said that he was ready to go back to work. Mr. Conway asked him to come see him before he reported for any further duties as a bus driver. Missing a three o'clock appointment the following Tuesday, Mr. Alford appeared in Mr. Conway's office at three o'clock on Wednesday, saying that he must have gotten the days mixed up. The conversation between the men was short, to the point, and unpleasant. Mr. Conway suspended Mr. Alford with pay. On October 26, 1988, the school board suspended him without pay. The present proceedings followed.
Recommendation It is, accordingly, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0634 Petitioner's proposed findings of fact Nos. 1 through 5 and 7 through 18 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, it was not clear that he needed approval from anybody other than the substitute at that time. Petitioner's proposed finding of fact No. 19 is properly a conclusion of law. Respondent's proposed findings of fact Nos. 1 through 4, 6 through 9, 15, 16, 23, and 26 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 5, 28 through 31, and 32 pertain to immaterial matters. Respondent's proposed findings of fact No. 10, 14, 17 through 20, 22, 27, and 33 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 11, the evidence did not show any understanding that Mr. Wells had agreed to take the morning run on November 6, 1987. With respect to respondent's proposed finding of fact No. 12, there was no morning route to Perry, and he supposedly stayed with the car. With respect to respondent's proposed finding of fact No. 13 the respondent did not give notice he was going to be absent. The hearing officer has not seen a hearing transcript. With respect to respondent's proposed finding of fact No. 21, the weight of the evidence showed he did not place a call to Ms. Holland on October 12, 1988. With respect to respondent's proposed finding of fact No. 24, the route was not "covered" on time. With respect to respondent's proposed finding of fact No. 25, respondent did not tell Ms. Rehberg in advance that he was not going to report for the afternoon run on October 12, 1989. With respect to respondent's proposed finding of fact No. 34, the evidence demonstrated knowing, intentional disregard of instructions to let people know of impending absences far enough ahead of time for other arrangements to be made. Respondent's proposed finding of fact No. 35 is properly a conclusion of law. COPIES FURNISHED: Jack W. Simonson Superintendent of Bay County Schools 5205 West Highway 98 Panama City, Florida 32401 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Franklin R. Harrison Sale, Smoak, Harrison, Sale McCloy & Thompson Post Office Drawer 1579 Panama City, Florida 32401 Pamela L. Cooper Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 14th day of June, 2007.
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of July, 1997.
