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 issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teaching certificate held by the Respondent, Matthew Fontes, based on an Administrative Complaint charging him with violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2014).
Findings Of Fact The Respondent holds Florida educator certificate 1138466, which expires on June 30, 2018. He is certified in guidance and counseling. From 2010 to 2014, he was a middle school guidance counselor at Narcoossee Community School in Osceola County. On October 9, 2013, two Narcoossee students, K.S. and H.F., got into a verbal argument. At the end of school the next day, K.S. got onto the bus and became concerned by the “dirty look” and hard stare H.F. was giving her and thought that more arguing and possibly physical fighting would take place if she stayed on the bus. To avoid a fight, K.S. and her cousin, A.L., got off the bus and went to the school’s administration building for K.S. to call her mother at work to pick them up. K.S. was adamant about not riding the bus, so her mother agreed to leave work and pick them up. K.S. and A.L. then went to find a school administrator. They found the Respondent in his office helping another student, S.W., with a written statement about an unrelated bullying incident. Standing in the doorway to the Respondent’s office, K.S. told the Respondent that she did not feel comfortable riding the bus home because a girl on the bus was giving her “dirty looks” and bothering her, and she was afraid there was going to be a fight. She did not say who the other girl was. She told the Respondent that she had called her mother, who was on her way to drive her and her cousin home, and asked if she could wait in the office for her. The Respondent asked if they were signed up for the after-school program for students who did not take the bus home and was told that they were not. The Respondent noticed Kelly Slade, a paraprofessional at the school, in the hallway and asked her if the office was closed, which it was. The Respondent then told the two students that he could not wait with them because he had an appointment with an air-conditioning repairman, and that they would have to ride the bus. He did not look for or use his school-issued radio to call another administrator. Instead, he led K.S. and A.L. back to the bus loading area. When they got outside the building, the buses were starting to leave the bus loading area. As he was running up to Dustin Sassic, the administrator in charge of buses, the Respondent yelled at him to hold the buses. Mr. Sassic complied with the Respondent’s request. As the Respondent approached Mr. Sassic, the students got on their bus, and Mr. Sassic “rolled” the buses (i.e., signaled to the bus drivers to continue to leave the school). When the Respondent reached Mr. Sassic, he told him there had been a problem, but the Respondent had to leave for an appointment. Mr. Sassic could not recall any specifics about the problem mentioned by the Respondent. The Respondent then walked directly to the teacher parking lot and left school to meet the air-conditioning repairman at his house. Not long after the buses left, H.F. started a fight with K.S. and punched her in the nose, causing it to bleed. The bus driver stopped the bus, and emergency medical services and the sheriff’s office were called. On her way to the school, K.S.’s mother received a telephone call from her daughter and was told what had happened. She then got a call from an emergency medical services technician regarding her daughter’s nosebleed and treatment and the location of the bus. She drove directly to the bus to see to her daughter’s needs. The next day, K.S.’s mother and father went to the school to ask the principal, Dr. Matthew Phillips, why their daughter was not allowed to wait for her under the circumstances, but instead was made to take the bus. At the time, the principal knew nothing about the incident. He followed up on the complaint by talking to Mr. Sassic and initiating an investigation. As a result of the investigation, the Respondent was reprimanded by the Osceola County School District for violating parts of the Principles of Professional Conduct, including rule 6A-10.081(3) regarding protecting students from harm. At the end of the school year, Dr. Phillips decided not to renew the Respondent’s employment contract because of the K.S. incident and other “struggles” in meeting the requirements of his job as guidance counselor at the school. Since then, the Respondent has not been employed as a teacher; he has been employed by his uncle, who has health problems, helping to take care of him and his orchard. The Respondent’s version of the incident on October 10, 2013, was starkly inconsistent with the greater weight of the evidence. He testified that K.S. did not appear to be at all stressed or upset about having to ride the bus and only told him that someone on the bus was bothering her. All the other witnesses confirmed that K.S. was visibly upset, definitely did not want to ride the bus that day, and told the Respondent that her mother was on the way to drive her home. Even if all K.S. said was that someone on the bus was bothering her, the Respondent asked no questions to better understand the situation. The Respondent then testified that he asked Ms. Slade, the paraprofessional, to supervise the cousins while he dealt with the other student in his office and to try to determine the facts and whether the cousins should ride the bus. He testified that he finished with the other student and returned to Ms. Slade and the cousins. He testified that Ms. Slade told him the cousins just said someone was bothering them and that she believed they should ride the bus. Ms. Slade categorically denied that any of this actually took place. Again, even if it happened that way, it would have been incumbent on the Respondent, as guidance counselor, to ask more questions to resolve the matter. The Respondent also testified that he explained the situation to Mr. Sassic, who concurred that the students should be required to ride the bus. Mr. Sassic denied this, and the greater weight of the evidence refutes the Respondent’s testimony. Simply put, the greater weight of the evidence was that the Respondent wanted to leave school to make his appointment with the air-conditioning repairman. This desire led to a poor decision to place the cousins back on the bus without giving the matter adequate attention. He unreasonably took a chance that the threat to K.S. was not credible. This placed K.S. in physical danger. The offices of the school’s other administrators, including the principal, Dr. Phillips, were a short distance from the Respondent’s office. If the Respondent was too busy to help K.S., he should have gone to one of the other administrators for assistance. The Respondent also had a school-issued radio, as did all the administrators at the school, but did not attempt to use it to call for assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending his teacher certificate for six months to impress on him the importance of taking responsibility for his actions and acting in accordance with the Principles of Professional Conduct in general, and rule 6A-10.081(3)(a) in particular. DONE AND ENTERED this 6th day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of January, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
The Issue Copies furnished: (See next page) Copies furnished to: Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street Post Office Box 40089 Jacksonville, FL 32203 Thomas W. Brooks Attorney at Law Post Office Box 1547 Tallahassee, FL 32302 Otis A. Mason, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, FL 32084 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Case No. 90-5886 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of St. Johns County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4-15(12-23); 17(24); 18(25); 25-30(6-11); and 31-40(26-35). Proposed findings of fact 19-24 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1, 2 and 16 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Philip Brown Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3-5(2-4). Proposed findings of fact 2, 6-9, and 14-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10, 11, and 18-21 are irrelevant. Proposed findings of fact 12 and 13 are unsupported by the competent, substantial evidence.
Findings Of Fact Philip Brown was employed as a school bus driver by the School Board of St. Johns County in July 1989. On August 27, 1990, the first day of the school year, Mr. Brown experienced difficulty with students assigned to his bus at Ketterlinus Middle School. Students were throwing paper, sitting in the aisles, drinking beverages on the bus, and making racial slurs at Brown. One student was removed from the bus and another had to be removed temporarily for discussion with Assistant Principal Ron Russell. After getting the students sufficiently calmed down to begin transporting them home, Brown left Ketterlinus and began his route. The students resumed misbehaving during the trip, throwing paper and yelling loudly at each other. After approximately ten minutes, Brown determined that the students were sufficiently disruptive to warrant returning them to the school, so he turned the bus around and called in to the transportation office to inform the dispatcher that he was returning to school because the students were rowdy. Debra Sapp, the School Board's Route Specialist, answered the radio when Brown called in and responded "okay" when Brown told her he was returning to Ketterlinus. It took approximately six or seven minutes for Brown to reach Ketterlinus after speaking with Ms. Sapp. At Ketterlinus Brown stopped the bus and ordered the students off the bus. A female student on the bus, who had not been disruptive, asked Brown how the students were to get home, and Brown responded that he did not care how they got home. Brown immediately left the school. The students had no adult supervision and Brown had not made any effort to ensure that the students had adult supervision. A short time after the School Board Route Specialist Sapp received the call from Brown advising that he was returning to the school, Sapp received a call from Assistant Principal Russell, who said that the bus had just dropped the students off and left the school. Ms. Sapp called Brown on the radio and told him that he had to go back to the school and get the students, that he could not leave the students, and that Mr. Russell was there to handle any disciplinary problems. Brown responded to Ms. Sapp and stated that he would not return to the school and that he refused to transport the students. Ms. Sapp then instructed Brown to bring the bus back to the Transportation Department compound and that someone else would complete his routes. Brown complied with this instruction. St. Johns County School Board Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows: * * * (3) Transported pupils * * * To maintain order and discipline, under the direction of the principal, on the part of any pupil passenger. To permit a child to leave the bus only at a regular stop except upon written request of the parent or guardian or at the direction of the principal. * * * (11) Relationship to other personnel * * * (c) Pupils The bus driver shall be responsible for the safety of the pupils on his bus and shall be constantly on the alert for any condition that would endanger their safety. The bus driver shall assume a responsibility for the control of pupils as delegated to him by the principal. He may not: * * * Put a child off the bus at any other than the regular stop except upon written permission of the parent or the principal, provided, that should an emergency develop due to the conduct of pupils on the bus, the bus driver may take such steps as are reasonably necessary to protect the pupils on the bus. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students. The primary responsibility of the school bus driver is to ensure the safety of everyone on the bus. During his employment with the School Board, Brown received training on safety and proper procedures as required by the Department of Education. Ida Bowman, the School Board's Safety Training Specialist, trains the school bus drivers and is responsible for conducting the training that is required by the Department of Education. During the training that is conducted by Ms. Bowman, drivers are told the procedure to be followed in a situation in which they return to the school because of disruptive students. During the training that is provided by Ms. Bowman, drivers are told that if they return to the school with disruptive students and there is nobody there waiting for them, they are to contact the Transportation Department again and the Transportation staff will arrange to have someone meet the bus. During the training sessions that are conducted by Ms. Bowman, drivers are told that the students are the drivers' responsibility from the time that they get on the bus until they are safely delivered home and that drivers are not to leave the students unattended. Brown attended the classes in which Ms. Bowman discussed the above procedures to be followed when returning students to the school. Dwaine Fisher, the School Board's Director of Transportation, received complaints prior to November 27, 1990, concerning Brown's failure to follow School Board procedures and complete his duties as a bus driver. Fisher had received three previous complaints about Brown's failure to follow School Board procedure concerning transportation of students. Brown had been reprimanded in the past for leaving students because his actions affected the safety of the students since there was no one there to supervise the students. Fisher had instructed Brown that when he returned students to the school because of discipline problems, he was to get with an administrator when he got back to the school. From his previous experience, Brown knew that it was improper to drop students off at school if there was no adult supervision. The duties of Ms. Sapp, the School Board's Route Specialist, include setting up routes, handling any problems that come up with the routes or the drivers, giving the drivers instructions on new stops and changes to their routes, talking to the public concerning routes, and instructing drivers on various routes to take. The Route Specialist has the authority to direct drivers where to go. The School Board's Director of Transportation does not have to confirm instructions given to drivers by Ms. Sapp. Ms. Sapp, as the Route Specialist, had the authority to tell Brown to return to the school to transport the students. Brown's refusal to comply with Sapp's instruction to return to the school was viewed as insubordination by the School Board's Department of Transportation. During a meeting held on August 28, 1990 in the office of Robert Braden, the School Board's Director of Human Resources and Management Training, which meeting was attended by Mr. Braden, Mr. Brown, Mr. Fisher, Assistant Superintendent of Operations David Toner, and Union Representative Claudia Brunke, Brown admitted that he dropped the students off without adult supervision, left the school, and refused to return to the school when directed to do so by Ms. Sapp. If the situation that took place on August 27, 1990, occurred again, Brown acknowledged that he would not comply with a directive of the Route Specialist unless formally approved by the Director of Transportation. Messrs. Toner, Braden, and Fisher recommended to the Superintendent that Brown be dismissed because on August 27, 1990, he left the students at Ketterlinus Middle School unattended, refused to wait for an administrator at the school, and refused to follow direct orders from the Route Specialist to go back and transport the students. No other driver for St. Johns County School Board has engaged in conduct similar to the conduct in which Brown engaged on August 27, 1990. Based upon Brown's actions, the Superintendent suspended the Respondent and recommended his termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order terminating Philip Brown from his employment as a school bus driver. DONE and ENTERED this day of February, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of February, 1991.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the non-renewal of Petitioner's annual employment contract as a school bus driver at the end of the 1993-94 school year was due to discrimination against her, on the basis of her race (African American) or disability (depression), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a school bus driver from October 17, 1983, until June 8, 1994, when her annual employment contract was not renewed. Throughout her employment, Petitioner exhibited problems with tardiness and excessive absenteeism. Her performance appraisals noted that her attendance with either unsatisfactory or needed improvement. In 1990, Petitioner had 13 occurrences of absenteeism or tardiness. In 1991, Petitioner had 11 occurrences of absenteeism or tardiness. In 1992, she was given an evaluation of "Unsatisfactory" and placed on notice for possible non-reappointment. As of April 1993, Petitioner had 17 occurrences of absenteeism and tardiness and was advised by the Director of Transportation that continued excessive absenteeism might affect her chances of continued employment. On May 13, 1993, Joseph Wise (Wise), Director of Transportation, advised Petitioner that he recommended to Paul J. Hagerty, Superintendent (Superintendent), that Petitioner be suspended without pay for being tardy on August 24, 1992, September 3, 1992, September 11, 1992, and May 13, 1993. After a fourth offense, as provided in Article VIII, Section 15, "Tardiness" in the official Agreement between the School Board and the Seminole County School Board Bus Driver's Association, suspension is the authorized disciplinary punishment. On May 17, 1993, the Superintendent informed Petitioner that he would act upon the Acting Director's recommendation and recommend to the School Board that Petitioner be suspended for one day, effective September 1, 1993. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed the claim that she violated the tardy policy. The School Board approved Petitioner's suspension on June 15, 1993. On September 23, 1993, a conference was held with Petitioner and the Director of Transportation Services regarding Petitioner's absences on August 26, 1993, September 3, 1993, and September 15, 1993. Also discussed were Petitioner's tardiness on July 22, 1993, August 23, 1993, and August 24, 1993. Subsequent to the conference, the Director of Transportation Services wrote a letter of directive of Petitioner stating that he expected her regular attendance at work and that, for the remainder of the 1993-94 school year, Petitioner was directed to submit a doctor's statement and/or written explanation of the nature of any absence. Petitioner was also advised that failure to follow the directive or failure to achieve regular attendance at work could lead to further disciplinary action, including termination of employment. Petitioner was absent on October 28, 1993, November 9, 1993, November 16, 1993, and December 17, 1993. Petitioner was absent from work on January 3, 1994, to see her dentist. The dentist gave her a few days' worth of medication for dental pain. Petitioner's boyfriend was killed on or about January 7 or 8, 1994. She took a leave of absence from January 10, 1994, until January 30, 1994. On February 15, 1994, Julie Green, Area Supervisor, recommended to the Superintendent that Petitioner be suspended without pay for one day for having been absent without leave on February 15, 1994. Petitioner was tardy on February 24, 1994. On February 28, 1994, the Superintendent informed Petitioner that he intended to act upon Green's prior recommendation and recommended to the School Board that Petitioner be suspended without pay, effective April 6, 1994. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed that she was absent without approved leave. The School Board approved Petitioner's suspension on March 2, 1994. Petitioner had a doctor's excuse for being absent on March 17, 1994. The doctor's note states that she is able to return to work. Petitioner had an absence excuse from her dentist for April 8, 1994. She had to take medication for dental pain for a few days. On April 6, 1994, the five area supervisors met with Wise to discuss reappointments and non-reappointments of school bus drivers. Julie Green was one of the area supervisors at the meeting. The management team discussed a group of school bus drivers who were borderline in terms of performance. The group was comprised of persons from different ethnic and racial groups. The management team also discussed a group of school bus drivers who had problems with extreme absenteeism. The group of school bus drivers who had problems with extreme absenteeism was comprised of both African American and white individuals. Petitioner was among this group. Carla Green, a white non-handicapped female was also among this group. The absenteeism of school bus drivers creates a safety problem. The buses do not run on time. Inexperienced office staff have to drive the buses, so children may be left standing on the side of the road for a long time waiting for a bus to pick them up. School bus drivers who have a doctor's excuse for their absence still can be found to have excessive absenteeism. Some of the individuals with absenteeism problems were reappointed. Carla Green was among those who were reappointed. Carla Green's attendance problems were determined to be less severe than Petitioner's, and unlike Petitioner, Carla Green's attendance improved during the course of the 1993-94 school year. The group of school bus drivers, whose contracts were not renewed because of absenteeism, was comprised of black and white, male and female individuals. In total, 12 school bus drivers were not reappointed. Of this group, eight were white and four were African American. None was disabled. Two of the white women who were not re-appointed had been employed as school bus drivers as long as or longer than Petitioner. In the past, Julie Green had directly supervised Petitioner but had never supervised Carla Green. Petitioner was absent again on April 13, 1994, because she took her daughter to the doctor. By letter dated April 25, 1994, Wise notified Petitioner of his recommendation that her contract not be renewed at the end of the school year. Petitioner had a doctor's excuse for being absent on May 2 and 3, 1994. The doctor's note states that Petitioner can return to work with no limitations. Petitioner was absent from work on May 9, 1994, until May 12, 1994. The doctor's note states she can return to work on May 12, 1994, with no limitations. Petitioner had a doctor's note dated May 11, 1994, which states that Petitioner has been depressed since her boyfriend was killed. Petitioner had some trouble adjusting to medication which she was given for this condition. Petitioner requested and was seen by a counselor with The Allen Group, the Employee Assistance Program for the School Board, on four occasions in early 1994. On January 26, 1994, Petitioner reported feeling angry and depressed because her boyfriend had been shot and killed. She had learned at his funeral that her boyfriend had several other girlfriends during this time, one of whom was pregnant. Petitioner consulted with a counselor on March 7 and March 10, 1994. On March 21, 1994, Petitioner reported to her counselor that she was feeling better. Petitioner's last visit with her counselor was on May 11, 1994, when she reported that her job was in jeopardy because of too many absences. By letter dated May 15, 1994, the Superintendent advised Petitioner that he would be recommending to the School Board that her employment as a school bus driver be terminated. He also advised her of her right to a hearing prior to her termination pursuant to Section 120.57, Florida Statutes. Petitioner did not request a hearing. Petitioner did not request a review or discussion concerning any alleged disability. By letter dated June 16, 1994, Petitioner was informed that the School Board terminated her employment, effective June 8, 1994. Petitioner pursued the grievance procedure through Step II, available to her under the terms of the contract between the school bus drivers and the School Board. Petitioner argued that her termination was not justified because she does not believe that excessive absenteeism constitutes just cause, and that Respondent's actions were motivated by unlawful discriminatory conduct based on her race and disability (depression). Petitioner failed to prove her allegations of discrimination by a preponderance of evidence.
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 which denies the Petition for Relief. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. _____________________________________ DANIEL M. KILBRIDE 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 29th day of February, 2000. COPIES FURNISHED: Ned N. Julian, Jr., Esquire School Board of Seminole County 400 East Lake Boulevard Sanford, Florida 32773-7127 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Oaks Circle Tampa, Florida 33687 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline her based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and the parties' stipulations, the following findings are made: The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is employed within the School Board's transportation department as a school bus driver. She has worked for the School Board for approximately seven years, and has not been subjected to discipline prior to the incidents leading to this case. At all times relevant to this proceeding, the employment relationship between Respondent and the School Board was governed by the collective bargaining agreement between the School Board and the Seminole County School Bus Drivers' Association, Inc., dated July 1, 1997, through June 30, 2006. Respondent is Hispanic. She was born in New York City, but was raised in Puerto Rico, speaking Spanish. She served as a field medic in the U.S. Army from 1980 to 1987. Respondent understands English, but is more comfortable communicating in Spanish. Kenneth Lewis has been the director of the School Board's Transportation Department since November 2003. Mr. Lewis is black. The Transportation Department consists of approximately 640 employees and 460 buses. Mr. Lewis is the supervising administrator and has three supervisors who report directly to him: the supervisor of routing, the supervisor of fleet services, and the supervisor of operations. Under the supervisor of operations are six area managers, each of whom is responsible for the day-to-day supervision of bus drivers and bus monitors. Raymond Williams and Kathy Dent are two of the area managers in the transportation department. Mr. Williams is black. Ms. Dent is white, and is a recent breast cancer survivor. Both Mr. Williams and Ms. Dent are monolingual speakers of English. Mr. Williams and Ms. Dent were Respondent's immediate supervisors during the 2005-2006 school year. Jennifer McKenzie has been a bus monitor for the School Board for about six years. A bus monitor's job is to team with the driver to assist children with disabilities on the bus. Ms. McKenzie is Hispanic. She speaks Spanish and English, but is more comfortable conversing in Spanish. Ms. McKenzie worked as a monitor on Respondent's bus from 2003 through September 2005. Early in the 2005-2006 school year, Respondent's bus was consistently running behind schedule. Ms. Dent met with Respondent about the situation. Respondent told Ms. Dent that Ms. McKenzie was arriving late to work, causing the bus to run late. Ms. Dent then spoke with Ms. McKenzie, who denied that she had been late coming to work. Ms. McKenzie later reported this conversation to Respondent, who in turn denied blaming the problem on Ms. McKenzie. For the next week, Respondent's bus continued to run late. Ms. Dent went onto Respondent's bus prior to the afternoon run to discuss the situation with Respondent and Ms. McKenzie. Ms. Dent stated that she was getting conflicting stories about the problem, and she needed to clear up matters. Ms. McKenzie stated that she had never caused the bus to be late. Respondent denied ever blaming Ms. McKenzie. Ms. Dent stated that Respondent had blamed Ms. McKenzie several times, most recently that morning when she came to Ms. Dent's office to state that Ms. McKenzie was the cause of the bus being late. Respondent continued to deny blaming Ms. McKenzie. Ms. Dent concluded the meeting by emphasizing to Ms. McKenzie that it was very important that she and Respondent work as a team, and that she was to be on board the bus at her scheduled time in the future. Ms. McKenzie again stated that she was not the cause of the problem, but said she would be there on time. Ms. Dent got off the bus. Both Ms. McKenzie and Ms. Dent testified that Ms. Dent did not raise her voice during this meeting or call Respondent a liar or make any other disparaging comment toward Respondent. After Ms. Dent left the bus, Respondent and Ms. McKenzie continued the conversation. Respondent told Ms. McKenzie that this proved her prior statements that Ms. Dent tells lies. Respondent pointed out that she had denied blaming Ms. McKenzie in front of Ms. Dent, and claimed that Ms. Dent never liked Hispanic people. Respondent stated that when Ms. Dent underwent chemotherapy, it had been applied to her brain rather than her breast and turned her brain to shit, which was why everything she spoke was shit. On September 7, 2005, it began to rain just as Respondent's bus was starting its route. Ms. McKenzie had difficulty closing the roof hatches, and Respondent stopped the bus to help her. Respondent then proceeded to drive the bus into a subdivision under construction, despite Ms. McKenzie's warning that there was no exit, and took several minutes driving through the narrow roads before she could find a way out. The dispatcher, Ronnie Dubose, called Respondent to ask why she was late. Respondent told Mr. Dubose it was because her monitor could not close the roof hatches. This angered Ms. McKenzie because the closing of the hatches had taken much less time than the trek through the subdivision. Ms. McKenzie asked Respondent why she blamed the monitor. Respondent denied having blamed Ms. McKenzie. Ms. McKenzie told Respondent that she heard her tell Mr. Dubose that it was Ms. McKenzie's fault the bus was late. Respondent insisted that Ms. McKenzie had misunderstood, and Ms. McKenzie was just as insistent that she had understood very well. In an effort to change the subject, Respondent began to denigrate Mr. Dubose, stating that "this stupid nigger" didn't even know what he was asking. Ms. McKenzie was upset about the entire situation, and especially about having been blamed once again for the bus running late. Immediately after the bus route was completed, Ms. McKenzie went looking for Ms. Dent to explain what had happened, but could not find her. She spoke to Mr. Williams about the situation, and asked him to explain her version of events to Ms. Dent. The next day, September 8, 2005, Ms. McKenzie was able to meet with Ms. Dent and Mr. Williams after the morning bus run was completed. She explained that the main reason the bus was late on the previous day was Respondent's getting lost in the subdivision construction. Ms. McKenzie indicated to Ms. Dent that there were other issues bothering her regarding Respondent. Ms. McKenzie told Ms. Dent that Respondent had called Mr. Dubose a "nigger," and that Respondent had said not to trust Ms. Dent and that Ms. Dent's chemotherapy had turned her brain to shit. Ms. McKenzie stated that this was not the first time she had heard Respondent call a black co-worker a "nigger." About a week earlier, Respondent had approached Mr. Williams to ask for more time to complete her route, and Mr. Williams declined to do so before checking his route sheet. When Respondent returned to the bus, she called Mr. Williams a "stupid nigger" in the presence of Ms. McKenzie. Ms. McKenzie told Ms. Dent and Mr. Williams that Respondent had referred to Euletha Byrd-Campbell, a black dispatcher, as a "nigger." Respondent also called Mr. Lewis a "stupid nigger" after he refused to allow Respondent to post a flyer about a Hispanic Christmas party for transportation personnel. Ms. McKenzie stated that "nigger" was Respondent's common term for black people, and that she called white people "rednecks." Mr. Williams and Ms. Dent convened a meeting with Ms. McKenzie and Respondent on September 9, 2005. The meeting was conducted in English. At this meeting, Respondent admitted to making the alleged remarks about Ms. Dent's chemotherapy. When Mr. Williams asked if she had ever referred to a fellow employee as a "nigger," Respondent initially denied using that term. Then she stated that she had used the term in reference to Mr. Williams, but only in repeating what another bus driver, Claudia Robles, had said about him. According to Respondent, Ms. Robles became upset and called Mr. Williams a "nigger" when she learned that Mr. Williams had used a gift card she had given him for Christmas to buy pizza at the mall. During the meeting, Respondent gave no indication that she was unaware of the English meaning and usage of the word "nigger." At the conclusion of the meeting, Mr. Williams directed Ms. McKenzie and Respondent to submit written statements summarizing their versions of the facts. Ms. McKenzie submitted her statement on September 13, 2005. Respondent never submitted a written statement. Later on September 9, 2005, Mr. Williams and Ms. Dent met with Claudia Robles. Ms. Robles denied being angry with Mr. Williams about the gift card and denied ever calling him a "nigger." At the request of Mr. Williams, Ms. Robles submitted a written statement on September 14, 2005. At some point during this initial investigation, Ms. Dent learned from another Hispanic bus driver, Jean Rodriguez, that Respondent had made statements about Ms. Dent's condition on a separate occasion from that described by Ms. McKenzie. In the transportation department's compound, there are picnic tables at which the employees sit during the work day. Ms. Rodriguez sometimes sat at the tables with Respondent, and heard Respondent claim to have told Ms. Dent "that the cancer she had on her breast went to her head and it turned like shit." Ms. Rodriguez told Respondent she was wrong and walked away from the table, while Respondent laughed.2 Mr. Williams and Ms. Dent advised Julie Murphy, the supervisor of operations in the transportation department, of the matters discussed at the meetings of September 8 and 9, 2005. Ms. Murphy passed the information along to Mr. Lewis, the director of the transportation department. After learning the details of the allegations, Mr. Lewis decided to conduct an investigation of the matter. He spoke to John Reichert, the School Board's director of human resources and professional standards, and to Brenadette Hardy- Blake, the School Board's equity coordinator, to inform them of his intention to conduct an investigation. Mr. Reichert and Ms. Hardy-Blake agreed that Mr. Lewis should investigate.3 Ms. Dent and Mr. Williams each provided Mr. Lewis with a written statement summarizing the results of the interviews conducted on September 8 and 9, 2005. Mr. Lewis set up a series of interviews, commencing with the complainants, Ms. Dent and Mr. Williams. At the time of these interviews, Mr. Lewis had in hand the written statements filed by all the witnesses, including those of Ms. Dent and Mr. Williams. Mr. Lewis first interviewed Ms. Dent. He noted that she was very upset about Respondent's statements. Ms. Dent stated her intention to file a formal complaint against Respondent. At the hearing, Ms. Dent testified that Respondent's actions interfered with Ms. Dent's ability to act as Respondent's supervisor, because it was clear that Respondent had no respect for her. Ms. Dent felt personally violated by Respondent's comments about her cancer. Further, Ms. Dent believed that Respondent had undercut her authority with the other employees, particularly the black employees, who would not look at the white supervisors with the same respect knowing that Respondent was using the term "nigger" with impunity. Mr. Lewis next interviewed Mr. Williams. The two men discussed Mr. Williams' conduct of the earlier meetings. Mr. Williams stated that he wanted to pursue a formal complaint against Respondent. Mr. Williams did not believe he could continue to supervise Respondent knowing how she felt about him. He believed that Respondent's actions created a hostile work environment and fostered an environment of disrespect for his authority. Finally, Mr. Williams told Mr. Lewis that he could not be confident as to Respondent's treatment of children of color riding on her bus. On September 21, 2005, Mr. Lewis interviewed Respondent.4 At the outset of the interview, Mr. Lewis explained that Respondent had been accused of referring to Mr. Williams as a "nigger" in conversations with other transportation department employees, of making derogatory references to Ms. Dent's chemotherapy, and of telling the other employees not to trust Ms. Dent. Respondent denied calling Mr. Williams a "nigger." She stated that the word was not a part of her vocabulary, and denied even knowing the meaning of the word. Respondent admitted making comments about Ms. Dent, but told Mr. Lewis that she had only said that Ms. Dent's chemo had gone to her brain. Mr. Lewis asked Respondent if she could name anyone to corroborate her version of events. At first she said she could not, but thought more about it and gave Mr. Lewis the names of Ivette Sanchez and Millie Maldonado, two fellow bus drivers. Mr. Lewis interviewed the two bus drivers referenced by Respondent. Ivette Sanchez recalled Respondent telling her not to trust Ms. Dent, but was not sure whether she had heard Respondent make the comments about chemotherapy turning Ms. Dent's brain to shit. Ms. Sanchez was certain she had not heard Respondent refer to anyone as a "nigger." Mr. Lewis did not ask Ms. Sanchez to submit a written statement. Carmen "Millie" Maldonado told Mr. Lewis that she did not recall Respondent making the comments about Ms. Dent's chemotherapy, but that she might have heard Respondent make them at the picnic tables. Ms. Maldonado was similarly hazy regarding Respondent's use of the word "nigger." She might have heard Respondent say the word, but Respondent never said it directly to Ms. Maldonado. Mr. Lewis did not ask Ms. Maldonado to submit a written statement. At the hearing, Ms. Maldonado clarified that the only time she could recall hearing Respondent use the term "nigger" was in describing the controversy and investigation that is the subject of this case. Ms. Maldonado never heard Respondent refer to another person as a "nigger" or a "redneck." On September 22, 2005, Mr. Lewis interviewed Ms. McKenzie, questioning her about the items included in her written statement, which included Ms. McKenzie's version of Respondent's statements about Ms. Dent's chemotherapy and Respondent's references to Mr. Williams as a "nigger." Ms. McKenzie confirmed to Mr. Lewis that she had heard Respondent make the comments about Ms. Dent's chemotherapy turning her brain to shit and had heard Respondent refer to Mr. Williams, Mr. Dubose, and Mr. Lewis5 as "niggers" in conversations with her. Mr. Lewis asked Ms. McKenzie if she could have misheard Respondent using the Spanish term "negro" when she thought Respondent said "nigger." Ms. McKenzie stated that she knew the difference between the two words. She and Respondent spoke to each other mostly in Spanish, and there is no Spanish word for "nigger." Ms. McKenzie was positive that "nigger" was the word used by Respondent. Also on September 22, 2005, Mr. Lewis interviewed Ms. Robles, the bus driver whom Respondent claimed to have been quoting when she used the word "nigger" in relation to Mr. Williams. Ms. Robles denied ever calling Mr. Williams a "nigger," or even becoming angry over Mr. Williams' use of the gift card to buy pizza. She also told Mr. Lewis that she had heard Respondent refer to Mr. Williams and other black employees as "niggers." At the hearing, Ms. Robles testified that, after the Latin Christmas party in 2004, Respondent complained to her that the disc jockey had played nothing but "nigger music." Ms. Robles also testified that she heard Respondent say, "What does that nigger think he is, he's new," after Mr. Lewis refused her request to post the Latin Christmas party flyer. Ms. Robles testified that it was simply part of Respondent's vocabulary to call black people "niggers." Throughout the investigation, Mr. Lewis kept Mr. Reichert and Ms. Hardy-Blake apprised of his findings. At the conclusion of his investigation, Mr. Lewis was convinced that Respondent had made the offensive statements of which she stood accused. Mr. Lewis wrote a memorandum summarizing his investigation and concluding as follows: In summary, based upon the input and/or statements that were received from various persons who had knowledge of the incidents under investigation, it is determined that the driver, Ms. Mirella Hernandez, did: Refer to Mr. Ray Williams as nigger, violating District policy creating a hostile environment. Use the term nigger while referring to Ms. Euletha Byrd-Campbell, violating District policy creating a hostile environment. Use the term nigger while referring to Mr. Ronnie Dubose, violating District policy creating a hostile environment. Made the statement as described by Ms. Jennifer McKenzie, while referring to Ms. Kathy Dent, violating District policy creating a hostile environment. Tell other employees not to trust their Administrator violating rules of ethics, creating a hostile environment. It should also be noted that Ms. Hernandez has previously received less than satisfactory rating on previous assessments related to her ability to maintain a professional relationship and attitude toward colleagues and subordinates. Mr. Lewis submitted his report and copies of all written statements to Mr. Reichert, Ms. Hardy-Blake, Ms. Dent, Mr. Williams, and Respondent. Ms. Dent and Mr. Williams met with Ms. Hardy-Blake, and submitted witness affidavits for her file. After the report was submitted, Mr. Lewis and Mr. Reichert had a lengthy meeting with Deputy Superintendent George Kosmac. At the conclusion of the discussion, Mr. Kosmac concurred with Mr. Lewis' recommendation that Respondent's employment with the School Board should be terminated. Mr. Lewis drafted a letter to Respondent, dated October 7, 2005, which was hand-delivered to Respondent on October 10, 2005, along with Mr. Lewis' report and all of the witness statements collected during the investigation. The letter stated, in relevant part: Ms. Julie Murphy, Supervisor of Operations, reported to me that you had made disparaging and racist comments to other transportation employees concerning Area Managers Kathy Dent and Ray Williams, and other personnel, within the transportation community. It was also stated that you were heard telling employees not to listen to Kathy Dent, circumventing her ability to carry out her duties as an Area Manager. I spoke to you on Wednesday, September 21, 2005, inquiring about the allegations lodged against you. You admitted saying to other employees in reference to Ms. Dent, "the chemo went straight to her head," but denied saying, as alleged by others that, "Kathy's chemo, instead of being to her breast, they applied it to her brain and that is why her brain was burnt and the only thing left was shit in her brain and that is why she only speaks shit." You also denied ever referring to Ray Williams, Euletha Byrd- Campbell, Ronnie Dubose and Kenneth Lewis6 as "niggers," as alleged. You also denied telling other employees not to listen to Ms. Dent. In conversations with Area Managers, Kathy Dent and Ray Williams, they confirmed that you did in fact openly admit to the allegations lodge [sic] against you and went on to state that you made the admissions without remorse. They also said that you admitted, in the presence of Ms. Jennifer McKenzie, to the allegations lodged against you. In conversation with Ms. Jennifer McKenzie, Ms. Claudia Robles, and Mr. Jose Romero on September 21st, 22nd, and October 4th, they all confirmed that they heard you, at some point in time, make one or all of the statements alleged, in reference to the aforementioned parties. As a result of the facts found during our inquiry, it is determined that you knowingly made disparaging statements to other employees in reference to Kathy Dent, Ray Williams, Euletha Byrd-Campbell, Ronnie Dubose and Kenneth Lewis. Your actions constitute conduct that is unbecoming of an employee of the School Board of Seminole County, Florida, and further represents a violation of School Board policies 6.06—- Employee Nondiscrimination and 9.63-— Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees. Therefore, I am recommending to the Superintendent that you be suspended from your duties, and further that your employment with the Seminole County Public Schools Transportation Services, be terminated for the reasons and violations referenced above. After Mr. Lewis' recommendation and accompanying materials were delivered to Respondent, Mr. Reichert met with William Vogel, the School Board's superintendent, to discuss the termination recommendation. Dr. Vogel concurred in the recommendation and directed Mr. Reichert to draft a letter, to be issued over Dr. Vogel's signature, suspending Respondent from her duties and recommending to the School Board that Respondent be terminated from her position. Dr. Vogel's letter, dated December 8, 2005, stated in relevant part: I have received a copy of the letter that you received from Mr. Kenneth Lewis, Director of Transportation Services wherein he has recommended that you be suspended from your duties, and further that your employment be terminated. His recommendation is based upon the fact that you made statements and/or demonstrated conduct that constitutes conduct unbecoming of an employee of the Seminole County Public Schools, and is a violation of School Board policy 6.06 and 9.63. After a careful and lengthy review of the facts surrounding this recommendation, which is supported by the information contained in [the] investigation completed by Mr. Lewis, be advised that I have accepted the recommendation as submitted by Mr. Lewis. Therefore, pursuant to applicable Florida Statutes, be advised that you are suspended with pay effective at the close of business on December 9, 2005. Additionally, be advised that I will file a recommendation with the School Board of Seminole County at their regularly scheduled meeting to be held on Tuesday, January 10, [2006], that you be suspended from your duties without pay effective January 11, 2006, for the reason referenced above. . . . Further be advised that I will file an additional recommendation with the School Board of Seminole County, Florida that your employment be terminated for the reasons and violations identified above. . . . Mr. Lewis handed Mr. Vogel's letter to Respondent on December 9, 2005. A few days later, Paul Sanchez, Executive Director of the Umbrella Organization for the unions representing non-management employees such as Respondent, contacted Mr. Reichert on Respondent's behalf. Mr. Sanchez and another union representative met with Mr. Vogel, Mr. Reichert, and Mr. Kosmac. Mr. Sanchez contended that the entire matter was a misunderstanding centered on Respondent's difficulty with English. He also contended that the investigation was flawed because Mr. Lewis, Mr. Williams and Ms. Dent were intimately involved despite the fact that they were the alleged victims of Respondent's derogatory comments and racial slurs. Mr. Sanchez believed that the investigation became very emotional, and that the situation could be resolved by transferring Respondent. Dr. Vogel agreed to place a hold on his recommendation pending an inquiry by the School Board's legal staff into the issues raised by Mr. Sanchez. Following the legal staff's review of the investigation, Dr. Vogel decided to move forward with his recommendation that Respondent be suspended without pay and terminated as a School Board employee. By letter, dated February 28, 2006, Dr. Vogel informed Respondent's representatives of his intention. At the final hearing, several of Respondent's co- workers testified on her behalf. Jose Romero, an area manager who acted as translator during Ms. McKenzie's interview with Mr. Lewis, testified that he has known Respondent as a co-worker for over four years and never heard her use the word "nigger" or "redneck." Mr. Lewis' report contained the following paragraph: During the interview with Ms. McKenzie, Mr. Jose Romero accompanied her to translate or explain anything she did not understand. When the question of the use of the word nigger was asked to Ms. McKenzie, Mr. Romero said that Ms. Hernandez uses the term when referring to Ray Williams, Euletha Byrd- Campbell and Ronnie Dubose. He heard her use it at the table where many of the Hispanics congregate in front of the dispatch office. At the hearing, Mr. Romero flatly denied making the statements attributed to him in Mr. Lewis' report. Mr. Lewis was not questioned about this contradiction. Mr. Romero testified that he knew Respondent and Ms. McKenzie as co- workers, and considered Ms. McKenzie to be his friend. Mr. Romero attended the meeting in Mr. Lewis' office at the request of Ms. McKenzie, who did not trust the other translators proposed by Mr. Lewis, because they were all friends of Respondent. Ms. McKenzie testified that she trusted Mr. Romero. Ms. McKenzie's testimony allays any suspicion that Mr. Romero changed his testimony to protect Respondent. It appears more likely that Mr. Lewis' report incorrectly attributed the quoted statements to Mr. Romero.7 Mr. Lewis did not request a written statement from Mr. Romero. Carmen Padilla, a bus monitor who worked on Respondent's bus for a little more than one month, testified that she never heard Respondent use the term "nigger." Jose Galindo, a bus driver who shared a household with Respondent for ten years, testified that it is "impossible" that the word "nigger" could be part of Respondent's everyday vocabulary. Mr. Galindo testified that he has never heard Respondent use the word. Respondent and he socialized with black friends, and she never called them "niggers." Mr. Galindo did not recall ever hearing Respondent use the term "redneck." Respondent testified on her own behalf at the hearing. Respondent's version of the incident on the school bus was different from that of Ms. Dent and Ms. McKenzie. According to Respondent, Ms. Dent did not appear interested in hearing what happened to make the bus run late. Ms. Dent had already met with Ms. McKenzie and apparently accepted Ms. McKenzie's version of events. Respondent testified that Ms. Dent told her she lacked common sense and called her a liar, and that it was her anger at being so labeled that caused Respondent to lash out with her comment that the "chemo went up to her head" after Ms. Dent left the bus. Respondent also recalled telling Ms. McKenzie that what Ms. Dent had said was "bullshit." Respondent testified that, at the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she told Ms. Dent that she meant no harm by her comments, that she was merely striking out in anger. Respondent tried to explain that the source for "the comment about her chemo going to her head" was a "very famous [Latino] song" with a lyric that says "the bilirubin goes up to your head."8 Ms. Dent was screaming at Respondent, telling her that if she had said she was sorry, Ms. Dent would have forgiven her. Respondent testified, "How can you say that you're sorry to a person that is screaming, that is agitating things, and that I see there are lies?" Respondent could not remember ever telling people not to trust Ms. Dent. At the meeting, Respondent felt cornered. She testified that she was never informed that she was entitled to have a union representative present. Respondent could not recall who they said was accusing her of using the word "nigger," but Respondent brought up the name Claudia Robles. Mr. Williams asked Respondent if she had ever called him a "nigger," and Respondent denied having done so. Respondent told Mr. Williams that she had used the word when translating a letter for another bus driver. The letter apparently described a situation involving Mr. Williams and this other driver, and referred to Mr. Williams as a "nigger." Respondent testified that Ms. Dent threatened her, saying that "we're gonna take this all the way . . . I'm going to make sure that you get suspended, I'm going to do everything possible to get you suspended." From this statement, Respondent surmised that she would have a meeting with Mr. Lewis in the near future, after which she would be fired. Respondent denied that Mr. Williams or Ms. Dent ever asked her to submit a written statement. Respondent testified that, after the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she went to the picnic tables where the transportation department employees gathered between shifts. Everyone at the table knew something was going on, and people asked Respondent why she had been called in for a meeting with her supervisors. Respondent then told them she was being accused of using the word "nigger," and of making the comments concerning Ms. Dent's chemotherapy. Respondent could not remember who called her in to meet with Mr. Lewis on September 21, 2005. She walked into the room and saw that Mr. Lewis, Ms. Dent, and Mr. Williams were already there. She was not told that she could bring a union representative to the meeting, and was not offered a translator. Mr. Lewis first questioned Respondent about her driving, then asked about the "nigger" and chemotherapy comments. Respondent testified that she read from a letter she was composing, to make Mr. Lewis "see my culture, where I come from, something like that." Respondent never finished the letter and did not submit it to Mr. Lewis. Respondent told Mr. Lewis that she didn't know the meaning of the word "nigger," and at the hearing, claimed she was not sure if she knew it was a racial slur at the time of the meeting with Mr. Lewis.9 She testified that during seven years in the Army, she never heard anyone say the word. She lived in Alabama, Georgia, and Texas, and never heard anyone say "nigger." Respondent testified that she later had a second meeting with Mr. Lewis regarding allegations by Ms. Robles that Respondent was harassing her. Respondent testified that during this meeting, Mr. Lewis asked her if she had called him a "nigger." Respondent denied the allegation, and tried to make Mr. Lewis understand that Ms. Robles was the person who used the word "nigger." Respondent testified that Ms. Robles used the word "nigger" several times, on social occasions away from work. Respondent stated that Ms. Robles' pronunciation was so poor that the word was unintelligible. Respondent understood what Ms. Robles was saying only when another woman chastised Ms. Robles for using the word. Respondent testified that Ms. Robles also used the word "redneck." Respondent testified that she never referred to any transportation department employee as a "nigger." The word is not part of her day-to-day vocabulary. Respondent uses the Spanish word "negro" "all the time, because that's the word I was raised with." The term simply denotes color, and does not carry the derogatory meaning of "nigger." Respondent's testimony is not persuasive as to the issue of her use of the word "nigger." The greater weight of the evidence supports the finding that Respondent did refer to Mr. Williams, Ms. Byrd-Campbell, Mr. Dubose, and Mr. Lewis as "niggers," that she did so because the word "nigger" was simply her manner of referring to black people when they angered her and were not present to hear, and that she knew the derogatory meaning of the word. Respondent's changing story as to when she learned the meaning of the word did not enhance her credibility. She initially denied ever having used the term "nigger," then admitted to using the word when quoting Ms. Robles, then later claimed not to have known the meaning of the word. The fact that several employees claimed not to have heard her use the term does not establish that Respondent never used the term. At most, it establishes that there were some fellow Hispanic employees with whom Respondent did not feel comfortable in indulging her use of the word. Respondent's testimony, as well as that of her supportive witnesses, does raise questions about the investigative process employed by Mr. Lewis. Respondent testified that Mr. Lewis never asked her to submit a written statement, testimony that is somewhat corroborated by the fact that Mr. Lewis did not ask Ms. Sanchez, Ms. Maldonado, or Mr. Romero to submit written statements. Further, Mr. Romero credibly denied having made the statements attributed to him in Mr. Lewis' report. Taken together, these facts establish that Mr. Lewis' report functioned more as a brief for the prosecution than as an even-handed investigative summary. Nonetheless, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. All of the relevant witnesses testified in person at the hearing, and the undersigned was able to make an independent judgment as to their veracity and credibility, without reliance upon Mr. Lewis' report. School Board Policy 6.06, adopted July 19, 2005, is titled "Employee Nondiscrimination Policy." Its stated purpose is as follows: The Seminole County School Board is committed to providing educational and work environments free of all forms of harassment or discrimination. No employee or applicant for employment shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination or harassment in any program, activity, employment, or conditions of employment in Seminole County Public Schools on the basis of race, color, national or ethnic origin, gender, disability, marital status, age, religion, political or religious beliefs, or any other basis prohibited by law. Nor shall any person be subjected to retaliation for reporting or complaining of alleged discrimination or harassment or participating in any way in the investigation of such allegations. The employees of Seminole County Public Schools shall not engage in such discrimination or harassment, and such conduct is also prohibited for any third party while participating in any activity sponsored by Seminole County Public Schools. The definition of "racial harassment" is set forth at School Board Policy 6.06 II.B. as follows: Racial harassment is verbal (oral or written) or nonverbal (physical or graphic) conduct that degrades or shows hostility or aversion toward any employee based upon race, color or national origin when such conduct substantially interferes with the employee's job performance or the terms and conditions of his/her employment, or creates an intimidating, hostile, or offensive work environment. Racial harassment, as defined above, may include but is not limited to the following conduct: Epithets and slurs; Negative stereotyping; Threatening, intimidating, or hostile acts; or Written or graphic material that shows hostility or aversion toward an individual or group. There can be little question that "nigger" constitutes a racial epithet and/or slur, and that Respondent's verbal conduct in using the term degraded or showed hostility toward fellow employees based upon race.10 The more difficult question is whether Respondent's verbal conduct created "an intimidating, hostile, or offensive work environment." Respondent never used the term "nigger" directly against the persons at whom the epithet was directed, and she was not in a supervisory capacity as to those persons, two factors that militate against terming Respondent's actions "intimidating" in the common workplace sense of the term. However, the testimony of Mr. Williams as to the hostile and offensive work environment created by Respondent's verbal conduct is persuasive. Mr. Williams credibly believed that his effectiveness as a supervisor was undermined by Respondent. He felt hurt and disrespected, and did not think he could continue to work with Respondent. The testimony of Ms. Dent was also persuasive. Though she was not the target of the racial epithet, Ms. Dent credibly believed that her authority over and respect from the department's black employees could only be undermined if she allowed Respondent to use the term "nigger" openly and with impunity.11 It is found that Respondent's verbal conduct constituted "racial harassment" as defined in School Board Policy 6.06 II.B. Employee and student training procedures are set forth in School Board Policy 6.06 IV., as follows: IV. Training All employees and students shall receive training each year to insure that the entire education community understands this policy, what constitutes prohibited harassment, discrimination, or retaliation and the consequences for engaging in such conduct. Each principal and cost center supervisor shall ensure that this policy is specifically reviewed with employees, including administrators, instructional personnel, and noninstructional personnel, with volunteers, and with students on an annual basis. It is the responsibility of each supervising administrator in the school system to ensure that this policy is reviewed with all other employees over which he/she directly or indirectly has supervisory authority. Employees must clearly understand that conduct believed by them to constitute harassment should be reported to the principal, supervising administrator, or the District Equity Coordinator. They also must clearly understand that if an employee complains to them regarding alleged harassment, they should immediately refer that employee to the principal, the supervising administrator, or the District Equity Coordinator for appropriate action under this policy. Any personnel who may be called upon to conduct investigation must clearly understand how to do so, including the circumstances in which immediate or interim measures are necessary or appropriate. All employees, as well as students and volunteers, also must clearly understand that they and others supporting them will not suffer any retaliation or recrimination on account of their reporting of any alleged harassment or on account of participating in an investigation of any alleged harassment. Respondent contends that the annual in-service training sessions provided to transportation department employees by the School Board were inadequate to place Respondent fully on notice as to the meaning of "racial harassment." Respondent admitted that she attended such a training session on July 25, 2005, of which a videotape was admitted into evidence. The "training session" was a small part of a two-hour transportation department general meeting to prepare for the 2005-2006 school year. Mr. Lewis presided over the meeting, and recognized some drivers for perfect attendance and gave out safe driving awards. Mr. Vogel and Mr. Kosmac addressed the assembly. Other School Board employees gave presentations on issues including road closings, field trips, payroll and union negotiations, training, care for exceptional students, the employee assistance program and employee benefits. After all of these presentations, Mr. Lewis announced that a video was about to be shown dealing with sexual and racial harassment and fraternization. He told the assembly that "we are required" to show the video, and that each employee present would be required to sign a document verifying that he or she had watched the video. The video was started without further introduction. A title on the screen indicated that it was a taped School Board training session from April 2005 on the topic of sexual and racial harassment and fraternization.12 The presenter identified herself as Sally Jenkins from the professional training department. Ms. Jenkins commenced her presentation with a discussion of sexual harassment, setting forth the definition and examples of "quid pro quo" sexual harassment and "hostile environment" sexual harassment. As Ms. Jenkins was going through examples of what constitutes "hostile environment" sexual harassment, the tape abruptly jumped into the middle of her discussion of racial harassment. Lost in this jump was any discussion of examples of racial harassment. It was unclear whether the jump was caused by a problem in duplicating the tape that was presented into evidence, or whether this was actually what was shown to the assembly on July 25, 2005.13 Respondent complains that the "training" provided by the School Board was entirely inadequate to meet the requirements prescribed in School Board Policy 6.06 IV. The entire presentation was in English, and no examples of what constitutes a "hostile environment" or "racial harassment" was provided in the video presentation. Respondent contends that the presentation was not designed to ensure that Spanish- speaking employees "clearly understand" what constitutes prohibited harassment or discrimination. Respondent correctly observes that this taped training presentation was treated in a pro forma manner at the July 25, 2005, assembly. If the videotape in evidence correctly conveys what was shown to the assembly, much of Ms. Jenkins' presentation on racial harassment was not shown. However, these objections would give rise to a defense only if Respondent could plausibly claim that she relied on the training for her knowledge of the matters giving rise to this case. In other words, Respondent would have to claim she was unaware that "nigger" was a racial epithet or that promiscuous use of the term "nigger" in the workplace would be deemed hostile and offensive by her co-workers, and that she was completely reliant on the School Board's training to be made aware of these matters. Respondent's contention that she did not know the meaning of "nigger" has been rejected. Whatever the inadequacies of the training provided at the July 25, 2005, assembly, Respondent cannot plausibly claim them as a defense in this case. The guidelines for School Board investigations of harassment or discrimination are set forth at School Board Policy 6.06 VI., as follows, in relevant part: Guidelines for Investigations At any time, the District Equity Coordinator may, in his/her discretion, appoint an appropriate person to investigate a report of harassment or discrimination. All such investigators will be appropriately trained in how to conduct an investigation pursuant to this policy and will not be persons alleged to have any involvement in the situation at issue. As found above, Mr. Lewis was the district equity coordinator prior to becoming director of transportation. As district equity coordinator, Mr. Lewis received extensive training in the substantive areas of harassment and discrimination and in the proper procedures for conducting investigations. Aside from his status as one of the persons whom Respondent allegedly called a "nigger," there is no question that Mr. Lewis was "an appropriate person to investigate" the allegations brought to him by Ms. Dent and Mr. Williams.14 The relevant portion of School Board Policy 6.06 VII, relating to the School Board's grievance procedure, is as follows: Grievance Procedure The following steps will be followed if an employee feels that he/she has experienced prohibited discrimination or harassment at work or during an activity sponsored by Seminole County Public Schools: Level I: If the employee believes that he/she has been discriminated against or harassed, the employee should file a written complaint with his/her building principal, supervising administrator, or the District Equity Coordinator. If the building principal or supervising administrator is allegedly involved, the complaint should be filed directly with the District Equity Coordinator. If the complaint is filed with the principal or supervising administrator, he/she shall immediately forward a copy to the District Equity Coordinator. The principal, the administrator, or the District Equity Coordinator must then schedule a conference with the employee to find out more about the complaint and explore possible resolutions. The conference should be held as soon as possible in light of the nature of the allegations and, in any event, must be held within five (5) working days of the date of filing. (Emphasis added) Respondent contends that the underscored language should have required Mr. Lewis to recuse himself from the investigation due to his personal involvement in the allegations against Respondent. Ms. Hardy-Blake testified that the School Board's interpretation of the quoted language is that a supervisor should not conduct the investigation only where he or she is the alleged perpetrator of the harassment or discrimination. Nothing in the policy prevented Mr. Lewis from conducting the investigation. As suggested above, many of Respondent's complaints about the process would have been rendered nugatory had Mr. Lewis stepped aside upon learning that Respondent was alleged to have called him a "nigger." Mr. Lewis credibly testified that the allegation had no effect on his conduct of the investigation, but Ms. Hardy-Blake or Mr. Reichert should have considered the appearance of allowing the alleged subject of an inflammatory racial epithet to continue as the lead investigator. However, as found above, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. This finding is based on the sworn testimony and demeanor of the witnesses at the final hearing, not on the statements in Mr. Lewis' report. Respondent's comments about Ms. Dent, though outrageous and cruel, were not violative of the policy against racial harassment. The School Board has alleged that Respondent's conduct violated School Board Policy 9.63, titled "Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees." The policy provides as follows, in relevant part: The School Board recognizes that education of children is a process that involves a partnership between a child's parents, teacher, school administrators, and other school and School Board personnel. The School Board recognizes that parental participation in their child's educational process through parent/teacher conferences, classroom visitation, serving as a school volunteer (Dividend), serving as a field trip chaperone, PTA participation, and other such service is critical to a child's educational success. For that reason the School Board welcomes and encourages parental participation in the life of their child's school. However, from time to time parents and other visitors to schools and District facilities sometimes act in a manner that is disruptive to a school or other District facility and which is threatening and/or intimidating to school and District employees. The purpose of this policy is to provide rules of conduct for parents, other visitors to schools, and District employees which permit and encourage participation in school or District activities, while at the same time enabling the School Board to identify and deal with those behaviors which are inappropriate and disruptive to the operation of a school or other District facility. It is the intent of the School Board to promote mutual respect, civility, and orderly conduct among district employees, parents, and the public. It is not the intent of the School Board to deprive any person of his or her right to freedom of expression. The intent of this policy is to maintain, to the greatest extent reasonably possible, a safe, harassment-free workplace for teachers, students, administrators, other staff, and parents and other members of the community. In the interest of presenting teachers and other employees as positive role models, the School Board encourages positive communication and discourages disruptive, volatile, hostile, or aggressive communications or actions. Expected Level of Behavior School and School District personnel will treat parents and other members of the public with courtesy and respect. Parents and other visitors to schools and District facilities will treat teachers, school administrators, other school staff, and District employees with courtesy and respect. Unacceptable/Disruptive Behavior Disruptive behavior includes, but is not necessarily limited to: Behavior which interferes with or threatens to interfere with the operation of a classroom, an employee's office or office area, areas of a school or facility open to parents/guardians and the general public and areas of a school or facility which are not open to parents/guardians and the general public; Using loud and/or offensive language, swearing, cursing, using profane language, or display of temper; Threatening to do bodily or physical harm to a teacher, school administrator, school employee, or student regardless of whether or not the behavior constitutes or may constitute a criminal violation; Damaging or destroying school or School Board property; Any other behavior which disrupts the orderly operation of a school, a school classroom, or any other School Board facility; or Abusive, threatening, or obscene e- mail or voice mail messages. The remaining sections of the policy deal with the procedure by which a parent may file a complaint as to a staff member's behavior, the authority of school personnel to direct disruptive persons to leave school or School Board premises, the authority of School Board personnel to deal with members of the public who are verbally abusive, and the procedure by which School Board employees should deal with abusive, threatening or obscene e-mail or voice mail messages. Respondent correctly observes that School Board Policy 9.63 makes no mention of employee discipline for failure to abide by its provisions. Read as a whole, the Civility Policy seems generally directed at the interactions of School Board personnel with the public, and more particularly at protecting School Board personnel from abusive language and behavior by members of the public. Absent some clearly defined enforcement mechanism as to employees, the Civility Policy appears to be an aspirational rather than a formal disciplinary standard. This finding, however, begs the question of whether Respondent's conduct toward Ms. Dent may be cause for discipline under the general heading of "conduct unbecoming" a School Board employee, pursuant to case law precedent. In that sense, School Board Policy 9.63 II may be read as setting forth examples of behavior that fall into the category of "conduct unbecoming" a School Board employee, thereby giving the employee notice that such behavior is unacceptable and subject to discipline. This issue is resolved in the Conclusions of Law below.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Seminole County School Board, issue a final order that terminates the employment of Respondent, Mirella Hernandez. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2007.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee based on the incident that occurred on May 16, 2007.
Findings Of Fact Respondent, Julius Balogh, has been employed with Petitioner, Lee County School Board ("the District"), since October 17, 2002. He is currently assigned as a Bus Operator in the Transportation Department. Respondent's annual contract with Petitioner was renewed for each of the school years: 2003- 2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. Since Respondent commenced working for Petitioner in October 2002, he has received five annual performance assessments. With the exception of Respondent's first year when he received three scores of "inconsistently practiced" out of 32 areas targeted for assessment, Respondent always scores at an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 06/07 performance assessment stated he was "a good worker, helpful, dependable and a joy to work with." On his 05/06 assessment, the assessor wrote in the "comments" section "Great job. Julius takes personal satisfaction in job and cares about his students. Continues to grow." During the five years Respondent has been employed with Petitioner, he has had a perfect attendance record. Aside from the present charges, he has never before been the subject of any disciplinary action. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statues (2007), and is governed by the Collective Bargaining Agreement between the School Board and the Support Personnel Association of Lee County ("SPALC"). The standard for the discipline of support personnel is "just cause," pursuant to Article 7 of the SPALC Agreement. On May 16, 2007, Respondent reported for duty at 4:49 a.m. He completed his morning shift at 10:07 a.m. He was then required to submit to a random drug and alcohol screening, which he passed. After dropping-off all students at their bus stops, Respondent was returning to the bus compound while following his regularly-scheduled route. While on duty and in uniform, Respondent parked his bus in front and entered the San Carlos Package Store. Respondent's stated reason for entering the store was for the intended purpose of purchasing an herbal extract product called St. Hubertus for his wife. St. Hubertus is an herbal product that Respondent's wife administers to herself daily, in her evening cup of tea, to alleviate digestive problems and stomach pain resulting from various medications she is prescribed. St. Hubertus is 35 percent alcohol by volume. Respondent and his wife regularly purchase St. Hubertus while visiting their country of origin, Hungary. Edith Balogh returns there annually for medical treatment. Edith Balogh's Hungarian physician first recommended St. Hubertus for her some 10 to 15 years ago to relieve her stomach pain. Edith Balogh had exhausted her annual supply of St. Hubertus sometime prior to May 2007. Although she and Respondent were scheduled to fly to Hungary on May 21, 2007, she was experiencing severe stomach pain and related symptoms. She, therefore, had asked her husband to attempt to procure the product locally. Respondent unsuccessfully sought to obtain the product at several stores prior to May 16, 2007. Ultimately, Respondent was told by a pharmacist that he might be able to find the product at the San Carlos Package Store. Since the San Carlos Package Store was located on Respondent's direct route to the bus compound, and because the weather was intemperate, Respondent did not want to backtrack after concluding his shift. Respondent decided to stop at the San Carlos Package Store for the purpose of purchasing the St. Hubertus product. Before stopping at the package store that day, Respondent had not used either of his two 15 minute breaks. He stopped at the store at approximately 6:45 p.m., clocked out of work at 7:17 p.m., and drove the approximately four miles from the store to the compound before clocking out. Respondent thus did not exceed the personal time Petitioner otherwise allowed its employees for their daily breaks. When Respondent inquired about the availability of St. Hubertus, the sales clerk advised him that he would have to order it and it would take three to six weeks to receive it. Respondent explained the urgency of obtaining the product, and the clerk recommended a similar product called "Jagermeifter." Respondent purchased two 50 ml bottles of Jagermeifter. The label on the bottles of Jagermeifter were in German and English. Respondent speaks German. The label described the product in German as "noble herb tea extract." The label also stated, in English, that the product contained 35 percent alcohol by volume (70 Proof). Respondent purchased the two bottles of Jagermeifter, placed them in a ziplock bag, secured them in his briefcase, and returned to his bus. Respondent then drove directly to the bus compound. As Respondent was pulling into the compound he received a cell phone call from the afternoon supervisor, Robert Schwartz, advising him that he was observed purchasing liquor and that he was suspended from operating the bus. Respondent clocked out and went home. Joe Howard, another supervisor, checked Respondent's bus for open alcohol containers the following day and found no such evidence. As had previously been approved, Respondent did not return to work prior to his departure for Europe. Respondent took the Jagermeifter product home with him on May 16, 2007, and presented it to his wife. Edith Balogh used the Jagermeifter as a substitute for St. Hubertus, and while it was not as effective as St. Hubertus, the Jagermeifter product did help to alleviate her stomach pain. Respondent testified that he believed he was purchasing a medicinal product, not an alcoholic beverage, when he bought the two small bottles of Jagermeifter. Respondent credibly explained that the reason he purchased the product was not for personal consumption, but for his wife's medicinal use. Respondent testified that he no longer consumes alcohol. Edith Balogh, Respondent's wife of 54 years, confirmed that Respondent does not drink alcohol and has not consumed any for approximately 45 years. Joe Howard's (Howard) testimony relating to Respondent's alleged admission that he would often purchase a "medicinal" product for his and his wife's consumption is not reliable. He did not make notes of the conversation, which occurred some eight months before the hearing. He offered conflicting testimony about who was present when the conversation occurred and was imprecise about whether Respondent admitted to regularly consuming Jagermeifter or whether he merely was admitting to intending to consume one of the bottles of the product purchased on May 16, 2007. Howard also failed to mention the alleged admission in the course of Petitioner's investigation. The greater weight of the evidence supports the testimony of Respondent and his wife that Respondent does not consume alcohol. Therefore, there is insufficient evidence to believe that Respondent intended to consume any of the Jagermeifter himself. Although Respondent's motive for purchasing the Jagermeifter product was for a medicinal purpose to alleviate his wife's chronic stomach pain, the product was not sold in a drug store as an over-the-counter medicinal product. The product was marketed and sold as an "alcoholic beverage" in a package store. The words on the label, "noble herb tea extract," were only written in German. Respondent parked the school bus in front of the package store, entered the package store while in uniform, purchased an alcoholic beverage, took it back to his bus, and returned to the bus compound, all while on duty. Respondent's stated reason that he did not first return the bus, clock out, and then return to the package store in his own vehicle was because it was raining and he was in a hurry to get the product home to his wife, is unsatisfactory. Respondent's effectiveness in the school system was impaired by purchasing the product while on duty and in uniform and returning with it on the bus to the compound. Respondent was in possession of alcohol under circumstances that would affect the efficient operation of the District's business or the safety of its employees and students or the public. Petitioner has adopted disciplinary guidelines for transportation employees. Under the facts of this case, the proper penalty for Respondent's misconduct in this case is disciplinary action up to and including termination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is Recommended that Petitioner, Lee County School Board enter a final order dismissing/terminating Respondent, Julius Balogh, from his position as an employee with the Lee County School District. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008.
