Findings Of Fact Respondent, Faye Norris, was employed by the School Board of Pinellas County as a bus driver in approximately September, 1978. While transporting children during the 1980-81 school year, Respondent frequently failed to completely stop at stop signs, drove at an excessive rate of speed for conditions, drove in excess of the applicable speed limit, and drove so fast turning corners that children almost slid off their seats and the bus left the road and drove across lawns. On a number of occasions, Respondent drove so fast that when she reached a bus stop, the bus did not stop until it had partially passed the bus stop. When loading children, Respondent frequently began to drive away from the stop before the children were seated, and on one occasion, a child was thrown to the rear of the bus. Respondent was "clocked" by grandparents of children on her bus, driving the bus at fifty-five miles per hour during rush-hour traffic in a thirty-five-mile per hour zone. Respondent regularly made fast starts and drove at an excessive rate of speed in the school yard at Norwood Elementary School and on one occasion almost ran over a teacher walking across the playground area. Frequently while Respondent was loading or unloading children she failed to activate the flashing lights on the bus and failed to extend the sidearm. On one occasion, Respondent stopped at a convenience store to make a telephone call. She left the door of the bus open and the engine running. The bus, which was full of children at the time had an automatic transmission. Some of the children on Respondent's bus were nervous about riding with her because of her speeding; and Lisa Hubbell, one of those children requested Respondent to drive more slowly because she was afraid. Parents of children riding the bus became frightened about the safety of their children. Mrs. Eatman contacted employees of the School Board on numerous occasions to complain about Respondent's driving habits, and Mrs. Robert Wallace contacted the School Board on two occasions. Jimmy M. Carlyle and Gail Edith Morrison principals at two of the schools to which Respondent transported children, received numerous telephone calls from parents complaining about Respondent's driving. Carlyle spoke to Respondent and cautioned her about speeding. Mitchell J. Kitchen, a route coordinator employed by the Petitioner, received telephone complaints about Respondent's excessive speed and discussed Respondent's driving with her on several occasions. Parris Lilly, Jr., a route supervisor, received complaints regarding Respondent's driving from principals, teachers, and citizens. He counseled Respondent on several different occasions. On March 27, 1981, Dr. Jerry C. Spears was driving through the residential neighborhood near his home when Respondent's bus came speeding toward him in his lane, and he had to drive off the street in order to avoid a head on collision. He began chasing Respondent's bus, which continued speeding and running stop signs. The bus was occupied by children. When Respondent stopped to load more children, Dr. Spears approached the bus to talk to the driver. Respondent slammed the door on his arm. Dr. Spears immediately contacted the Superintendent of Schools. Also on March 27, 1981, Respondent drove her morning route picking up children and transporting them to their schools without using the caution lights on the bus. The alternator was not working properly, and she was afraid that the bus was going to stall. Although she knows that school board policy requires that malfunctioning safety equipment be reported immediately and that the bus be driven no further, she failed to report that she was having a problem with the bus stalling until after she had driven a distance of approximately ten miles through downtown St. Petersburg during rush hour traffic. Bus drivers for the School Board of Pinellas County are required to activate the amber lights on the bus at least two hundred feet prior to the bus stop. Respondent activates those lights, if at all, fifteen feet before each stop. Walter M. Allison, III, Assistant Director of Transportation for the Petitioner, received complaints regarding Respondent's excessive speed. He told those persons complaining that their complaints needed to be reduced to writing and submitted to him. After receiving letters from several parents of children assigned to Respondent's bus and from Dr. Spears regarding his experience with Respondent, Allison reviewed Respondent's personnel file and scheduled a meeting at Bay Vista Elementary School on April 1, 1981, which meeting was attended by Respondent, a representative of Respondent's union, Mrs. Morrison, and Mr. Allison. The written complaints were reviewed with Respondent at that time. On April 2, 1981, the Superintendent of Schools wrote to Respondent advising her that she was suspended without pay effective April 2, 1981, because of her unsafe driving. He further advised her that he would seek School Board approval of that suspension and additionally would request that she be dismissed from her employment with the School Board of Pinellas County. Pursuant to Respondent's request that she be afforded an opportunity to face her accusers pursuant to a collective bargaining agreement with the School Board, a second meeting was held on April 7, 1981.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Patricia Banks', employment as a school bus operator based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since October 31, 2001, Respondent has been employed by the School Board as a school bus operator. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). In September 2004, Respondent was assigned to drive a morning route and an afternoon route. Her morning route ended at about 10:00 a.m., and her afternoon route commenced at about 1:30 p.m. Respondent's daughter, India Miller, also worked as a school bus operator for the School Board. On September 20, 2004, between her morning and afternoon routes, Respondent drove her daughter to the Wal-Mart store on Colonial Boulevard in Fort Myers. Ms. Miller's car was not running, and she was in the process of moving into a new residence. She had asked Respondent to take her to Wal-Mart to purchase cleaning supplies and to look into buying a new computer. Respondent and Ms. Miller were wearing their School Board bus driver uniforms. Respondent parked her car in front of the store, but near the garden department, which is on the side of the building along with the automotive department. Respondent and Ms. Miller entered the building through the front or "general merchandise" ("GM") entrance. Respondent and Ms. Miller proceeded to the electronics department to look at computers. They were assisted by David Heady, a sales associate in the electronics department. Mr. Heady testified that Respondent asked him several questions about the functionality of a certain computer, an eMachines desktop model priced at $698.00. Each woman said she wanted one of the computers, but Mr. Heady had only one of them on the floor. He put that one in a shopping cart for Respondent, then proceeded to the storeroom to get a second computer for Ms. Miller. When he returned with the second computer, about three minutes later, Mr. Heady noticed that Ms. Miller and the first computer were gone. Respondent told him that Ms. Miller had taken the computer to the front of the store to check out. This disturbed Mr. Heady because it is Wal-Mart's policy that all computers should be paid for in the electronics department. Mr. Heady's suspicions were also somewhat aroused by the fact that it was Ms. Miller who took the first computer out of his department, when it was Respondent who had asked for it. According to Mr. Heady, Respondent started toward the front of the store with the second computer, but Mr. Heady stopped her and told her she had to pay for it in the electronics department. Respondent paid cash for the computer, a total of $739.88, then left the electronics department. Mr. Heady then called the loss prevention office and spoke with loss prevention officer, Bernard "Bo" Lee, to inform him that a computer that had not been paid for had been removed from the electronics department. He testified that he checked out Respondent before alerting loss prevention of the missing computer because he did not want a confrontation with Respondent. Mr. Heady also informed his supervisor in the electronics department, Terrell Russ, about the missing computer. Mr. Russ, in turn, made his own call to loss prevention and spoke with another loss prevention officer, Mickey Holman. Respondent testified that she and her daughter went into the electronics department because her daughter wanted a new computer. Respondent stated that she knows very little about computers and that it was Ms. Miller who was asking technical questions of Mr. Heady. Respondent did ask if Mr. Heady had a second computer because she was interested in placing one on layaway for her sons. Respondent testified that there was no computer on the floor of the electronics department. When her daughter told Mr. Heady she wanted to buy the model under discussion, he had to retrieve it from the storeroom. Respondent testified that she waited for Mr. Heady to bring the computer while Ms. Miller shopped for her cleaning supplies. Mr. Heady returned with the computer and told Respondent that she would have to pay for the computer before she could take it out of the electronics department. Respondent called Ms. Miller on her cell phone and told her that she had to come back to the electronics department to pay for the computer. Respondent also asked Ms. Miller if she could afford to lend her the money to place a computer on layaway. Ms. Miller responded that she would not know until she completed her purchases. Respondent could not recall whether Ms. Miller told her that she was coming back to purchase the computer. Respondent left the electronics department and walked to the in-store McDonalds to eat lunch. Finding the McDonalds too crowded, she went outside to smoke a cigarette. The one piece of documentary evidence available at the hearing was the Wal-Mart receipt for the purchase of the computer. The receipt indicates that the computer was purchased with cash in the electronics department, though it does not establish whether it was Respondent or Ms. Miller who made the purchase. Respondent's testimony agrees with that of Mr. Heady on one point: Ms. Miller left the electronics department and was separated from Respondent for at least several minutes. Messrs. Lee, Holman, and Russ all observed Ms. Miller during the time she was separated from Respondent. Mr. Lee testified that he was patrolling the floors of Wal-Mart to watch for shoplifters. He noticed three black women, including Ms. Miller and two unidentified women, placing an eMachines computer in a shopping cart. Mr. Lee stated that the eMachines computers were a "hot item," and he, therefore, paid special attention when customers placed them in shopping carts. Though he had seen Respondent with the other women in the electronics department, Mr. Lee did not see her touch the computer. Mr. Lee stated that he followed Ms. Miller to the front of the store. Respondent was still in the electronics department. Mr. Lee observed Ms. Miller push the cart holding the computer to the line of cash registers, through the line, past the greeter who checked her receipt, and out the GM entrance. Though he did not specifically observe Ms. Miller pay for the computer at the front registers, Mr. Lee assumed that it had been paid for because the greeter allowed her to leave the store without incident. From just inside the GM doors, Mr. Lee watched Ms. Miller walk to a car in the front parking lot. Mr. Lee did not see Ms. Miller load the computer into the car, but he did observe her re-enter the store a few minutes later, without the computer, but carrying a Wal-Mart receipt. He followed Ms. Miller to the toy department, where she met Respondent and the two unidentified women standing near a shopping cart containing a second eMachines computer. Mr. Holman testified that after being radioed by Mr. Russ that a computer had been taken from the electronics department by one of two women in school bus driver uniforms, he began searching the store. He observed Ms. Miller go through the checkout area and past the greeter, who signaled that Ms. Miller had a receipt for her computer. Mr. Holman radioed to the electronics department and told them there was no problem, that the woman had paid for the computer. The person in electronics who answered told Mr. Holman that there was a second computer. Mr. Holman went to look for the second computer while Mr. Lee maintained his surveillance on Ms. Miller. Mr. Holman found the missing computer sitting in an unattended shopping cart in the toy department. After a minute or two, he saw Respondent approach the cart. Then, two other women joined her, and they began talking. Mr. Holman stated that Respondent approached the cart several times, but did not actually touch or take hold of it. After a few minutes, Ms. Miller approached the group of three women. Mr. Lee followed her and maintained his surveillance apart from Mr. Holman. Both loss prevention officers were out of earshot of the four women. Mr. Lee recalled that Ms. Miller handed the receipt to Respondent at that point, though they later passed it back and forth more than once. After some conversation, the two unidentified women walked away. Ms. Miller began pushing the cart containing the computer toward the automotive department called the "TLE" for "Tire and Lube Express." Respondent walked in front of the cart. Mr. Lee noted that exiting through the TLE in the rear of the store would require Respondent and Ms. Miller to walk around the outside of the store to reach the front parking lot and that exiting through the GM entrance would be much more convenient. Mr. Lee testified that this behavior alone would have aroused his suspicions. The women guided the cart out through the TLE entrance. Ms. Miller pushed the cart, and Respondent lifted the front of the cart over the metal strip in the doorway. The electronic article surveillance ("EAS") system did not sound an alarm. Mr. Lee testified that it is not unusual for the EAS system not to sound, and he attached no significance to its silence. After the women were outside the store, Mr. Lee and Mr. Holman approached and asked them to return to the store. Ms. Miller told the men they had scared her. She said, "I pissed myself [sic]." Ms. Miller also told Mr. Lee that she had a receipt for a computer. Mr. Lee found it significant that she said "a computer," rather than "this computer." Mr. Lee and Mr. Holman escorted the women to the loss prevention office. Ms. Miller, ultimately, admitted to stealing the computer. Respondent denied doing anything wrong and was visibly upset when she was detained. In the loss prevention office, Respondent called her employer on her cell phone to arrange for someone to cover her afternoon bus route. None of the Wal-Mart employees present in the loss prevention office could recall Respondent's making any statement that could be construed as incriminating. The local police arrived, and both women were arrested. Ms. Miller subsequently resigned her employment with the School Board. At the time of the hearing, Respondent's criminal case had not been resolved. Again, Respondent told a different story. While she was smoking her cigarette outside, Respondent began to worry about finishing the shopping in time to drive her afternoon bus route. She called Ms. Miller on her cell phone and asked how much longer she would be in the store. Ms. Miller told Respondent that she was paying for her merchandise and asked Respondent whether she had seen her in-laws in the store. Respondent said that she had not seen them and asked where they were. Ms. Miller told her that she last saw them in the toy department. Respondent finished her cigarette, then walked back into Wal-Mart. She walked to the toy department and found her relatives where Ms. Miller had last seen them. Respondent noted that they had a computer in a shopping cart. One of the in-laws told her that it was Ms. Miller's computer, and they were waiting there for Ms. Miller to return. Ms. Miller arrived, took control of the shopping cart, and asked Respondent if she was ready to go. Respondent saw a Wal-Mart receipt in her daughter's hand. Ms. Miller told Respondent that she needed to buy something in the automotive department. Ms. Miller pushed the cart toward the rear of the store, where the TLE was located. When they reached the TLE, Ms. Miller began asking questions of the sales associate. Respondent interrupted her, saying they had to leave in order to make their afternoon bus routes. Ms. Miller pushed the cart out the TLE entrance, and they were approached by Messrs. Holman and Lee, who told them they needed to come back inside. Ms. Miller said, "Oh, shit. You're gonna make me piss on myself." Respondent wondered why Ms. Miller was reacting so strongly, if she had done nothing wrong. Respondent was adamant that she had no idea Ms. Miller was attempting to steal a computer. Respondent believed Ms. Miller had paid for the computer. Respondent testified that she and Ms. Miller had both worked for Wal-Mart in the past, and both knew that a customer is not allowed to take a computer from the electronics department without paying for it. Ms. Miller apparently had a receipt for the computer. Respondent testified that it never crossed her mind that Ms. Miller would steal a computer; that she believed her daughter "had better sense than that." Based upon the testimony of all the witnesses, including the deposition testimony of Messrs. Lee and Holman, and the documentary evidence, it is found that the School Board did not prove by a preponderance of the evidence that Respondent stole a computer from Wal-Mart. The evidence certainly demonstrated that Respondent's daughter, Ms. Miller, attempted to steal a computer. However, even if the testimony of the School Board's witnesses were accepted in its entirety, no witness definitively linked Respondent to the computer in such a way as to demonstrate her guilty knowledge that it was being stolen. The testimony of Mr. Holman cannot be credited. After detaining Respondent and Ms. Miller, Mr. Holman prepared a written report attesting that he observed Ms. Miller purchase a computer in the electronics department and take it to her car, while Respondent selected another computer, put it in a shopping cart, and took it to the toy department. In his pre-hearing deposition, Mr. Holman testified that he saw Ms. Miller select and pay for a computer in the electronics department. During cross-examination during the final hearing, Mr. Holman conceded that he witnessed none of these events. Mr. Holman's efforts to explain his misleading statements were unconvincing. He essentially stated that his reporting practice was to write a first-person narrative commingling hearsay reports from other witnesses with his own personal observations. Thus, when Mr. Holman wrote, "I observed a female (India Miller) purchase a desktop PC in the electronics [department]," he actually meant that Mr. Lee observed the purchase and later told Mr. Holman about it. Mr. Holman's testimony must be disregarded because the undersigned cannot reliably distinguish between Mr. Holman's first-hand observations and the hearsay statements that he adopted as his own. The testimony of the remaining witnesses conflicted on key points. The evidence established that Mr. Heady was confused as to the time of day during which the relevant events occurred. Mr. Heady had no recollection of the two unidentified black women whom Mr. Lee stated were with Respondent and Ms. Miller in the electronics department. Mr. Lee stated that he saw Ms. Miller and the two unidentified women put a computer in a shopping cart. Mr. Heady testified that he placed the computers in the shopping carts. Mr. Heady testified that Respondent paid for the first computer. However, he also testified that it was Respondent who asked him technical questions about the computer's capabilities. Respondent credibly testified that she is ignorant about computers and that it was her daughter who was asking Mr. Heady the technical questions. It is likely that Mr. Heady's recollection was confused and that it was Ms. Miller who paid for the first computer. Respondent's narrative of the relevant events was not without its inconsistencies, but the burden was not on Respondent to establish her innocence. Respondent's narrative was credible as to the key point, that she did not know her daughter was attempting to steal a computer from Wal-Mart. The evidence presented by the School Board was insufficient to demonstrate that Respondent ever gave any indication, through her words or her actions, that she knew Ms. Miller had not paid for the computer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding her back pay and benefits retroactive to December 16, 2004. DONE AND ENTERED this 15th day of July, 2005, 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 15th day of July, 2005.
The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver 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 matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Whether Respondent has committed a discriminatory employment practice against Petitioner by virtue of Petitioner's race. (In deference to Petitioner’s preference, his race will be referred-to as "Black.")
Findings Of Fact Lenore Kimmons is an adult "White" female. She was initially hired in July 2004, in Milton, Santa Rosa County, Florida, by Laidlaw Education Services (Laidlaw) as a school bus driver. At that time, Laidlaw had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 13, 14, and 15.) Effective April 1, 2005, Laidlaw and Amalgamated Transit Union (Local 1395/AFL-CIO), a mechanics’/maintenance union, entered into a collective bargaining agreement. (Stipulation 8.) This collective bargaining agreement (mechanics’ union contract) continued to be in effect when Petitioner was initially hired by Laidlaw, and by the use of executed “successor clauses,” continued in effect through the period of alleged discrimination. (Stipulation 8.) In the absence of any persuasive evidence to the contrary, the undersigned takes the “effective date” of the mechanics’ union contract to constitute its “ratification” date, as well. Petitioner is an adult “Black” male. Laidlaw initially hired him in Milton, Florida, on September 18, 2006, as a "B Mechanic.” At that time, Laidlaw still had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 1, 2, 3, and 7.) Petitioner was subject to the mechanics’ union contract, beginning with his September 18, 2006, date of hire and continuing past the alleged date of discrimination in 2008. Petitioner has had extensive heavy vehicle mechanical experience since 1989. He has worked for the United States Air Force and Department of Defense in Europe, and he supervised two vehicle maintenance shops prior to being hired by Laidlaw. He holds an Associate degree in automotive technology. Upon being hired in July 2004, Ms. Kimmons had begun work as a school bus driver (Stipulation 14) and shortly thereafter began to train as a mechanic. When she began training as a mechanic, she was reclassified into a “C Mechanic” position. As a “C Mechanic,” Ms. Kimmons ceased to be subject to the bus drivers’ union’s collective bargaining agreement and became subject to the mechanics’ union contract that eventually governed Petitioner. Sometime in 2006, Ms. Kimmons began to clerk in the office, but she continued to be classified as a “C Mechanic” and continued to be subject to the mechanics’ union contract. The mechanics’ union contract makes a distinction between employees hired before its ratification on April 1, 2005, such as Ms. Kimmons, and employees hired afterwards, such as Petitioner. It does not make a distinction based upon when one became a mechanic. The mechanics’ union contract provides, in pertinent part: MAINTENANCE DEPARTMENT JOB DESCRIPTIONS/CLASSIFICATIONS ARTICLE 28 Section 1 only applies to current employees who are already employed prior to the ratification of this labor agreement. * * * “A” Mechanic – required to have a minimum of 2 years experience Is defined as maintenance employee(s) who hold a Florida State Certification for School Bus Inspections. Required to work with limited supervision. The employee should have good skills and who is capable of repairing bus and white fleet including brake inspections and repair. The employee is capable of assisting and instructing lower classification mechanics. Must have and maintain a Florida CDL including “S” endorsement. “B” Mechanic – required to have a minimum of 3 years experience Is defined as maintenance employee(s) who assist higher classification mechanics. Work with supervision when required. Assists with inspection including all necessary repairs. Must have and maintain a Florida CDL including “S” endorsement. “C” Mechanic – entry level employee(s) Is defined as maintenance employee(s) who shuttle, clean, fuel, and as otherwise directed by management. Also responsible for minor cosmetics around shop such as crush oil filters, sweep areas in need, empty trash, dip tanks, and assist mechanics if necessary with full supervision by other Management personnel. Must have and maintain a Florida CDL including “S” endorsement. * * * Section 5 As of the ratification of this AGREEMENT the job descriptions for all new hires will be as follows: * * * “A” Mechanic Is defined as a maintenance employee who holds a minimum of three (3) ASE School Bus Certifications to include at least a) Air Brake, b) Steering and Suspensions, c) Diesel Engines and a Florida State Certification for School Bus Inspections. The employee is required to have a minimum of 3 years of “medium/heavy duty” technician experience (“B” Mechanic level). The employee must have good skills, is capable of diagnosing and repairing school buses and white fleet including brake inspections and repair in a reasonable length of time, in a professional manner and be able to work with limited supervision. The employee is also capable of assisting and instructing lower classification mechanics. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “B” Mechanic Is defined as a maintenance employee who holds a minimum of two (2) ASE School Bus Certifications to include at least a) Air Brake[1] and b) any of the other six (6) ASE School Bus Certifications. The employee is required to have a minimum of 2 years of “medium/heavy duty technician experience. The employee must also have good working skills, be able to assist with any inspection and all repairs as well as work with supervision when required. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “C” Mechanic Is defined as a maintenance employee who is capable of shuttling, cleaning fueling and as otherwise directed by Management. The employee is responsible for minor cosmetics around the shop such as crush oil filters, sweep areas in need, empty trash, dip tanks and assist mechanics if necessary with supervision by other maintenance personnel. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. (Emphasis supplied) At no time material has either Petitioner or Ms. Kimmons ever been a member of the mechanics’ union, but from its inception, the collective bargaining agreement between Laidlaw and the mechanics’ union applied to all mechanical employees, regardless of any employee’s union membership or lack of union membership. Petitioner has been outspoken in his refusal to join the mechanics’ union. Laidlaw was purchased by First Student, Inc., on October 1, 2007. (Stipulation 9.) Upon First Student, Inc.’s purchase of Laidlaw, Petitioner and Ms. Kimmons became employees of First Student, Inc. (Stipulation 10.) First Student, Inc., is the only Respondent in this cause. Upon First Student, Inc.’s purchase of Laidlaw, the mechanics’ union contract then in existence was carried over to bind First Student, Inc. At no time material has either Petitioner or Ms. Kimmons possessed an ASE School Bus Certification in Air Brake, an ASE School Bus Certification in Steering and Suspensions, or an ASE School Bus Certification in Diesel Engines. (Stipulations 4, 5, and 6.) Petitioner and Ms. Kimmons took the examination for the Florida State Certification for School Bus Inspections in February 2008. (Stipulations 11 and 12.) Petitioner could not demonstrate that Ms. Kimmons did not have the prerequisite number of years of experience or other qualifications to sit for the examination. Petitioner’s testimony, that in February 2008, and up to the date of hearing herein, he was Respondent's only “Black” mechanic in Mechanic Classes A, B, and C, was not refuted. In February 2008, Petitioner and Ms. Kimmons both passed the Florida State Certification for School Bus Inspections examination. At that time, both of them believed that successful completion of the examination would entitle them to be appointed as Class A mechanics, to a rise in pay grade, and to a $1.00/per hour raise in pay. (Stipulations 16, 17, and 18.) Lenore Kimmons requested an increase in pay and an increase in grade from “C Mechanic” to “B Mechanic” after she completed her Florida State Certification for School Bus Inspections. (Stipulation 16.) Petitioner requested an increase in pay and an increase in grade from “B Mechanic” to “A Mechanic,” after he completed his Florida State Certification for School Bus Inspections. (Stipulation 18.) In February 2008, Ron Kramer was the immediate supervisor of both Ms. Kimmons and Petitioner. He notified his superiors, up the line of command, that Ms. Kimmons and Petitioner had passed their February examination and that he, Mr. Kramer, believed that each of them was entitled to a rise in grade and to a commensurate raise in pay. (Stipulations 16, 17, and 18.) Approximately two months passed after the February 2008, examination, and Ms. Kimmons did not receive her requested rise in grade or raise in pay. Petitioner, likewise, did not receive any rise in grade or raise in pay. The union filed grievances on behalf of Petitioner and on behalf of Ms. Kimmons, resulting in an increase in pay and a rise to "B Mechanic" for Ms. Kimmons, but no raise and rise to “A Mechanic” for Petitioner. (Stipulations 17 and 20.) Pursuant to the union contract and Ms. Kimmons’ hire prior to its ratification, the raise/rise from Class C to Class B did not require any ASEs, but a raise/rise from Class B to Class A would have required Petitioner, who was hired after contract ratification, to have three specific ASEs that he did not possess. These ASEs were in Air Brake, Steering and Suspensions, and Diesel Engines. Ms. Kimmons had been hired in 2004, before the 2005, effective date of the collective bargaining contract for mechanics. Petitioner had been hired in 2006, after the 2005, effective date of the collective bargaining agreement for mechanics. Petitioner's rate of compensation was $12.99/hour, when his request for a raise in pay and rise in grade was denied. Had his grievance been successful, he would have received $1.00 more per each hour worked as an "A Mechanic." (Stipulation 19.) First Student, Inc., ceased all operations in Santa Rosa County, effective June 30, 2008. (Stipulation 21.) Petitioner has not been employed by First Student, Inc., since June 30, 2008. (Stipulation 22.) Most, if not all, of First Student, Inc.’s employees in Santa Rosa County, including Petitioner, were hired by Durham School Services in July 2008, at the same respective pay and grade at which they were employed by First Student, Inc., on June 30, 2008. (Stipulation 24.) Petitioner is currently employed by Durham School Services and has been so employed since July 1, 2008. (Stipulation 23.) Had Petitioner received his raise in pay and rise in grade in February 2008, under First Student, Inc., he would have continued to have received pay and all emoluments at that higher grade and rate after Durham School Services took over in July 2008.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2009.
The Issue Whether Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Euretha L. Davies, is a white female, who was first employed by Respondent, Laidlaw Educational Services (Laidlaw), in 1997 as a school bus driver. Respondent is an employer within the meaning of the Florida Civil Rights Act. Respondent provides pursuant to contract school bus transportation in Santa Rosa County School District. This includes all aspects of transportation: training drivers, maintaining vehicles, preparing routes and administering the system, and preparing reports to state and federal authorities. Petitioner had been an employee of the Santa Rosa County School District for nine years prior to Laidlaw contracting to provide these services in 1997. She transferred her employment to Laidlaw at that time, maintaining her senority and pay rate. On January 4, 2000, Petitioner contacted Jeffrey R. Capozzi, Driver Development and Safety Supervisor for Laidlaw at their office in Milton, Florida, about pain she was experiencing in both her wrists. She was sent to Immediate Care at West Florida Medical Center, Pensacola, Florida. There, she was seen by Kenneth Hill, M.D., an orthopedic specialist. Dr. Hill performed surgery to release the carpal tunnel in the right wrist on May 23, 2000. On August 24, 2000, a follow-up evaluation of the right had revealed that soft support of the wrist was needed, but Petitioner had reached maximum medical improvement with a one percent partial impairment. Petitioner was released to full duties. On May 2001, an annual check up was done in order to maintain Petitioner's entitlement to future workman's compensation medical treatment. This examination was performed by James St. Louis, M.D., who took over Petitioner's case when Dr. Hill moved. Dr. St. Louis ordered nerve conduction studies of the right upper extremity, which was performed on July 30, 2001, by Dr. Gerhard. Dr. Gerhard found that the transmittal of nerve impulses was normal in the right upper extremity and left median nerve. On May 2, 2002, approximately a year later and after Petitioner had had a nerve conduction study, she was sent to see Michael L. Shawbitz, M.D., a neurological specialist. Dr. Shawbitz concluded that she had tendonitis in her right wrist and recommended physical therapy. On May 15, 2002, Petitioner was given a Dexterity Test for School Bus Drivers by Lillian Barnes, which Petitioner passed. On June 5, 2002, Dr. T. F. Brown gave Petitioner a physical, which she passed. On August 6, 2002, Petitioner returned to work when school started, driving a school bus with an automatic door opener. On September 4-6, 2002, Petitioner began training to become a driver trainer. Her instructor was Zeke Zeigler, a training director for Laidlaw. From September 9 through 13, 2002, Petitioner attended classroom training presented by Stephanie Slaton, who was in charge of Driver Safety and Development at the Laidlaw office in Milton, Florida. At this time, Petitioner was driving her bus seven hours and 35 minutes each day on a regular schedule. On September 16 through 20, 2002, Petitioner completed the classroom training and was scheduled to go on the road training with the trainer who fit into her schedule. At this time, Dianne Hall, Head of Routing and Data Entry, requested that Petitioner be taken off her driving schedule to assist in preparation of the report prepared by Laidlaw for the State of Florida on bus schedules and routes for the children in the district. Petitioner was taken off her bus to assist with this report, and when it was completed, she was to continue coming into the office between the morning and afternoon bus routes to keep information in the data system updated and correct. This data entry amounted to several hours of light typing daily. On October 15, 2002, Petitioner was informed that she had an appointment to see Dr. Minoo Hollis, for Petitioner's annual checkup on her workman's compensation injury. This examination was conducted on October 17, 2002. Dr. Hollis determined that Petitioner had tenosynovitis of the right flexor, a ganglion cyst of the left wrist volar ganglion, and diffused chronic pain of the left forearm and wrist. Dr. Hollis prescribed medication and physical therapy for Petitioner and put her on light duty not driving a school bus. On October 23, 2002, Petitioner started physical therapy at Santa Rosa Medical Center three times per week for three weeks. Petitioner continued to work at the school office and to make entries into the computer system. Petitioner was assigned to the school office where she worked on various projects. She did light typing, copied documents for the school staff, and handled mail. There is a conflict in testimony regarding whether these assignments were in pursuit of assisting with the data entry or were the result of light duty because of Dr. Hollis' findings. It is found that at the point Petitioner ceased driving the bus, it was the result of the light duty assignment. These light duties continued until December 10, 2002, when Petitioner was assigned to Pace High School (PHS) where the assistant principal, Bradley Marcilliat, was delegated authority to assign her duties. Upon her assignment to PHS, Petitioner's hours per week were reduced to 30, and her typing was restricted further by her supervisors at Laidlaw. On December 12, 2002, Dr. Hollis did a follow-up examination of Petitioner after physical therapy and found that she had a two percent permanent partial impairment and prescribed the following restrictions as they relate to her bus driving duties: Can sit, stand, and walk without interruption for eight hours; Reach above shoulder level frequently Can use hands for repetitive actions such as: Simple grasping-both hands Pushing and pulling-right hand no; left hand yes Restrictions of activities involving: Unprotected heights-none Moving machinery-none Changes in temperature and humidity-none Driving automotive equipment-none Restrictions to automatic transmission-yes Fumes and gas-none On December 12, 2002, Jennifer Jack, MSN, RN, who was the case manager employed by Genex Services, Inc., for Crawford and Company, Respondent's workman's compensation insurer, reported to Stephanie Slaton that Petitioner could drive a vehicle with automatic transmission per Dr. Hollis. Ms. Jack opined, "I am not sure if driving the bus requires any repetitive pulling, but if it does not, then it looks like Ms. Davies can drive a school bus." A question existed about whether Petitioner could operate the automatic door opener on the school bus, which required the driver to pull a knob with the right hand. Ms. Jack queried Dr. Hollis, and was told Petitioner could drive a bus with an automatic door opener. On December 24, 2002, Crawford and Company informed Petitioner that she would be paid one percent as the difference between the one percent she had initially been paid, and her current permanent impairment of the body as a whole. Petitioner continued her duties at PHS until January 31, 2003. Nothing was said about her returning to her normal bus driving duties, although she had been released by her doctor to return to work with the limitations stated above. On January 31, 2003, Petitioner was advised by personnel at PHS to report to Bobbie Williams' office at Laidlaw at 10:30 that morning. When she reported to Williams, he gave her a dismissal letter, and stated that Laidlaw had been informed by the insurance company that she had reached maximum medical improvement with regard to her injury that had occurred on January 4, 2000, and that with her current restrictions she was no longer able to perform essential requirement necessary to drive a school bus. This determination was based upon the Laidlaw's determination that Petitioner could not operate the automatic door opener on the school bus. This conclusion is contrary to the evidence presented by Petitioner that she had operated the door without problem before she developed the tendonitis, and contrary to Dr. Hollis' reports and the information provided to Ms. Jack by the doctor. Although the record shows that Petitioner continued to improve as revealed in her May 2003 examination, the fact that the doctor indicated that Petitioner had a permanent impairment of two percent in December 2002 indicates that Petitioner had reached maximum medical improvement as of that date. The facts reveal that Petitioner was ready to return to work; was discharged by Respondent because of an alleged inability to open the door of the bus; that Petitioner was able to open the door of a bus equipped with an automatic door opener; and that the "inability to perform the duties of the job" asserted by Respondent were not supported by the medical restrictions communicated to Respondent's agent, who made that information known to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter its final order directing that Respondent desist from discriminatory employment practices and directing Respondent to re-employ with appropriate accommodation Petitioner, promote her to a trainer-driver, and cease any further discriminatory practices. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Euretha Davies 3404 Oaktree Lane Pace, Florida 32571 Danny K. Guerdon Laidlaw Education Services 975 Cobb Place Boulevard, Suite 218 Kennesaw, Georgia 30144 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her. If so, what specific disciplinary action should be taken
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since May of 1984. She is currently under suspension pending the outcome of this disciplinary proceeding. For the duration of her employment with the School Board, Respondent has held a school bus aide position and been assigned to the School Board's South Regional Transportation Center (Center), the director of which, since May of 1994, has been Patricia Snell. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: selection and promotion of employees; separation, suspension, dismissal, and termination of employees for just cause; the designation of the organizational structure of the DCPS and the lines of administrative authority of DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX, Section 13, of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article IX, Section 14F, of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4- 1.05, which is the School Board's "Drug Free Work Place General Policy Statement." It provides, in pertinent part, as follows: DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place. DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable. Policy Objectives To promote a healthy, safe working and learning environment; To seek the rehabilitation of employees with a self-admitted or detected substance abuse problem; To eliminate substance abuse problems in the work place; To provide a consistent model of substance-free behavior for students; To provide a clear standard of conduct for DCPS employees; and To hire drug-free employees. Policy Statement- Illegal Drugs Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions: a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . . Policy Statement- Alcohol and Prescription Drugs Alcohol, prescription, and over-the-counter drugs are legal and readily available. Generally safe and acceptable, these drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will be free of intoxication from alcohol. Employees in safety-sensitive positions, as defined herein, will be free of measurable alcohol concentrations. Further, employees will not manufacture or use alcoholic beverages while on School Board property or on duty. . . . Policy Statement- Employee Physical Examination/Screening Health Services Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules. Circumstances under which testing may be considered include, but are not limited to, the following: observed use of illegal drugs and/or abuse of alcohol during work hours; apparent physical state of impairment of motor functions; marked changes in personal behavior on the job not attributable to other factors; . . . Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test. Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results. The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place. DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabilitation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: A. Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. . . . According to Article V, Section 18, of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27, thereof, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. The School Board's Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including the aforementioned School Board Rule 6Gx13-4-1.05, as well as School Board Rules 6Gx13-3E-1.10, 6Gx13-4-1.06 , 6Gx13- 4A-1.21, and 6Gx13-4E-1.011.2 School Board Rule 6Gx13-3E-1.10 School Board Rule 6Gx13-3E-1.10 incorporates by reference the provisions of the School Board's Transportation Rules and Policies Manual (Manual), including those set forth below, of which Respondent was timely made aware. Section 4 of the Manual describes "school bus aide responsibilities" and provides as follows: There is no requirement in either the law or the regulations that require the assignment of school bus aides to school buses. Dade County however, has elected to assign aides to some but not all of its school bus routes. Aides are not automatically placed on a bus because it is carrying exceptional education students. School bus aides are assigned to act as attendants on the school bus with the primary duty of maintaining order on the bus to allow the driver to give full attention to driving. Under the direction of the driver the aide works with children, school staff and parents in loading and unloading operations and in seeing to the needs of exceptional education students. The work of the aide must allow the driver to devote full time and attention to the safe operation of the vehicle. The aide must understand that the driver is in charge of the bus and is responsible for its safe operation. School Bus Aide responsibilities are: Bus aides must be clean and neat in appearance at all times (in prescribed uniform while on duty), must not use profane language, nor be under the influence of drugs or alcohol, nor use tobacco in the presence of students. Bus aides must abide by all safety rules and regulations which pertain to drivers but which do not relate specifically to driving tasks. Bus aides must be familiar with the rules of student conduct in order to assist in student behavior management and should have a working knowledge of the capabilities and limitations of the various categories of exceptional children. The aide shall prepare and maintain an accurate seating plan. Bus aides should be familiar with the use and location of all safety or emergency equipment (e.g., first aid kit, fire extinguisher, reflector) and should assist the driver in using this equipment should the need arise. The school bus aide must understand and learn how to assist the driver should it become necessary to evacuate the bus in an emergency. In dealing with physically handicapped students, bus aides will assume primary responsibility for loading and unloading students, must be familiar with the operation of wheelchair lifts and use of restraining devices and other equipment used in the transportation of the handicapped. Additionally, bus aides must ensure that wheelchairs are properly attached to their tie-down devices, and that use of such devices is consistent with the specification requirements as determined by the year of the school bus. The school bus aide should assist the driver in preparing reports, checking the working condition of safety equipment, and performing routine cleaning jobs. The bus aide and driver must have a good working relationship. The school bus aide should become familiar with the route, with the loading and unloading procedures, and be attentive to the location of the bus at all times along the route. The aide should be able to guide a substitute driver when this becomes necessary. The school bus aide shall render first aid, if necessary, to the limits of his/her training and abilities, and seek prompt aid by the best possible means available. This assistance shall be limited to that which may be normally expected of a reasonably prudent person. The school bus aide shall check under every bus bench at the end of every run. The school bus aide shall sit with or behind the last student on the bus in order to observe and monitor all the students on the bus. As a reading of Section 4 of the Manual reveals, the duties of a school bus aide are safety-sensitive and involve direct contact with students. Section 9 of the Manual describes the Department's "attendance policy" and provides as follows: ATTENDANCE RESPONSIBILITES School bus driver/aides are expected to be prompt and punctual in their attendance on all work days in accordance with the current calendar and their assigned schedule or contract. ABSENCES, AUTHORIZED For absences to be authorized, they must be reported to the driver's/aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time but not later than prior to the next scheduled report time. Even in an emergency every possible effort must be made to inform the Dispatcher. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Proper forms shall be completed promptly for payroll purposes. ABSENCES, UNAUTHORIZED Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver/aide does not report to work fifteen (15) minutes after the scheduled report time, or does not call in absent before their report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCE Drivers/aides must notify their Transportation Center's Dispatch Office as soon as they have determined they cannot report to work. Do not make arrangements on your own for a substitute! All arrangements must be made by the Dispatch Office. If you will not be reporting for work on regular school days, call in immediately. Speak with the Dispatcher, or your Field Operations Specialist. If you cannot report to work because of an emergency situation, contact the Dispatch office as soon as you possibly can. If the situation requires you to leave the area, have a relative or friend contact the office in your place. If your absence will occur sometime in the future, give the Dispatch Office as much advance notification as possible. When you contact the dispatch office, explain the reason for your absence, how long you will be off, and the estimated date of your return. If you will be off work for more than one (1) day, you must contact the office each day, prior to your report time, with a complete update of the situation. The only times you do not have to contact the office on a daily basis are as follows: Admission to a hospital as a patient. Maternity leave A doctor's work release for a specified number of days Extended sick leave Approved leave of absence If you are out of town CHECK-IN POLICY All employees are expected to arrive at work on or before their scheduled report time. Drivers/aides will be given a five (5) minute grace period to report to work, during which no disciplinary or financial action will be taken. For example, if you are scheduled to report for work at 6:00 a.m., as long as you sign-in by 6:05 a.m. you will be allowed to go out on your assigned route, with no repercussions. Drivers/aides who report to work 6-15 minutes after their scheduled report time will be considered "tardy." Tardy drivers/aides will be permitted to work. However, the Dispatch Office may assign a stand-by or substitute driver/aide to the route of the tardy driver/aide. Driver/Aides more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers/aides and not allowed to drive their route. A record will be kept of the amount of time the employee was late. Lost time will be accumulated, and employees will be docked pay in 1/2 day increments. Drivers/aides who report to work 16 or more minutes after their scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on unauthorized leave-without pay (ULWOP) and shall be subject to disciplinary action in accordance with the AFSCME Contract. Extenuating circumstances will be evaluated by the Center Director, and upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. PAPERWORK It is the driver's/aide's responsibility to report to the supervisor to complete and/or produce all required paperwork related to their absence on the first workday upon their return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. School Board Rule 6Gx13-4-1.06 School Board Rule 6Gx13-4-1.06 is the School Board's "tobacco-free work place" rule. It provides, in pertinent part, that, as of September 1, 1989, the "[u]se of tobacco products is not permitted . . . on school buses." School Board Rule 6Gx13-4A-1.21 School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. School Board Rule 6Gx13-4E-1.011 School Board Rule 6Gx13-4E-1.011 addresses the subject of "absences and leaves" and provides as follows: No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without prior approval shall be deemed to have been willfully absent without leave. The Center's Check-In Procedures In August of 1994, a few months after she assumed her position as the director of the Center, Patricia Snell sent the following memorandum concerning "check-in procedures" to all of the school bus drivers and school aides assigned to the Center: All drivers and aides must pick-up their bus keys or tag from the key board in the Dispatch office. This is the method of checking in for your shift. If you do not check in, your route will be given to a substitute driver and you will be considered NO CALL/NO SHOW for that shift. All drivers and aides must return their keys and tags to the key board immediately after each shift. Dispatch will have a list of field trips and those drivers and aides will then turn their keys and tags in the slot in the dispatch office if after hours. If there is a problem with your bus, turn in bus keys with the D.R.R. to Dispatch. If you are assigned a spare, then the spare bus keys will be placed on your assigned key hook prior to your shift. Your regularly assigned bus will not be returned until your assigned spare bus is fueled, swept, trash is emptied, windows up and parked in the proper parking space. You need not sign in. The Office Helpers and Dispatchers will keep track of your arrival times by use of the key board. The Tardy Policy will be strictly enforced. Employees who are 6-15 minutes late These employees are "late" or "tardy" and appropriate progressive discipline will be initiated. Such employees will be permitted to work their shift. Employees who are 16 or more minutes late These employees are recorded as "unauthorized leave without pay" and are not permitted to work that shift. Appropriate disciplinary action will be initiated. Respondent received her copy of this memorandum on August 25, 1994. Previous (Pre 1994-1995 School Year) Warnings Given Respondent Regarding Attendance and Leave Unauthorized leave was a subject with which Respondent should have been familiar at the time she received Snell's memorandum inasmuch as Respondent had received disciplinary warnings from her supervisors concerning the matter in the past. For instance, on February 11, 1988, she had received a memorandum (dated February 3, 1988) from Jack Schee, the then- director of the Center, which read as follows: While signing the payroll on January 29, 1988, I became very disappointed to discover that you had already started the new fiscal year with unauthorized leave without pay. This carefree, unresponsible attitude has got to change. The department, and more specifically your co-workers, count on your presence daily to accomplish our mission to provide the students of the Dade County schools with whatever is necessary to enhance their education. All employees in the Department of Transportation are being monitored for poor attendance and unauthorized leave without pay. In order to improve attendance, I am prepared to follow-through with any necessary action, such as conferences or suspensions, as the situation merits. Our records indicate that this is your 1[st] unauthorized absence. Per AFSCME Contract, Article XII, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totaling ten or more work days during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." In addition, Respondent had received written Operational Reminders for unauthorized absences on July 6, 1988, and September 5 and 7, 1989. Furthermore, on May 10, 1990, Schee had held a conference-for-the-record with Respondent to discuss Respondent's attendance record. Schee subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference. Schee's memorandum read as follows: A conference-for-the-record was held in my office on May 10, 1990 to discuss the attendance record of Ms. Jennifer Gardner, bus aide. In attendance at this conference were Ms. Gardner, Ms. Karen Crapps, route manager, and myself. Ms. Gardner stated that she did not want to have a representative present at the conference after I explained that she had the right to representation. I explained that on numerous occasions, the most recent being May 4, 1990, Ms. Gardner had failed to report to work and did not call the office to inform us of her absence. In addition, on May 4, 1990 Ms. Gardner reported to work thirty-five minutes late and missed her work assignment. On May 8, 1990, her assigned driver, Ms. Helen Spence, informed the office that Ms. Gardner reported to work on May 7, 1990[,] but that she fell asleep during most of her Southwood run. Ms. Gardner then stated that she had no comment to make concerning her attendance record. She stated that she did fall asleep on the bus but did not sleep the entire Southwood run. I concluded the conference by stating that her attendance record would be closely monitored and that if improvement was not made stronger disciplinary action would follow. I also informed Ms. Gardner that she would receive a memorandum of understanding concerning her attendance. The "memorandum of understanding" to which Schee referred was received by Respondent on May 16, 1990. It read as follows: On May 10, 1990 we held a conference-for-the- record concerning your attendance on the job and your failure to inform the office when you are not coming to work. I expressed the fact that I was extremely disappointed that your attendance has not improved since we have discussed this problem many times before. I then explained to you that if you continue to fail to report to work and do not inform the office then I would forced to request more serious disciplinary action. By way of this memorandum I am instructing you to inform the office at least 30 minutes before your reporting time on any occasion in which you cannot come to work. I am also instructing you that you will not be allowed to report to work late and expect to be paid for that time. If your performance does not improve I cannot guarantee your employment for summer school session. As acknowledgment that you have received this memorandum, and understand it, please sign below and return to me. A copy is provided for your purpose. Respondent had also received written Operational Reminders for unauthorized absences on May 6, 7 and 8, 1991. On May 15, 1991, she received a memorandum (dated May 9, 1991) from Schee concerning these unauthorized absences. The memorandum read as follows: During the payroll period ending May 9, 1991, you chose to take Unauthorized Leave Without Pay on May 6, 7 and 8th. You are professionally accountable to report to work on time and/or call the operations office no less than one-half hour prior to your check- in time, to inform them of your absence. Failure to call within the prescribed time constitutes Unauthorized Leave Without Pay. The attendance of all employees in our department is monitored daily. In order to improve attendance, I am prepared to follow through with any necessary action, such as a conference-for-the-record or suspension, as the situation merits. Our records indicate that this is your 3rd unauthorized absence. Per AFSCME Contract: Article XI, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totalling ten or more working days during the previous twelve-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." Warnings Given Respondent Regarding Attendance and Leave During the 1994-1995 School Year On November 16, 1994, Respondent received a written Contact Report from the Center's coordinator, Wynona Sleeth, concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: Six half days NCNS [No Call/No Show]. One whole [day] unauthorized. Any day you do not have time available is unauthorized. Any time you call in after due time is NCNS. Sleeth subsequently, on or about December 21, 1994, provided Respondent with the following Letter of Deficiency: This is to inform you that you have accumulated 17 Absences Tardies NC/NS 9 ULWP [unauthorized leave without pay] since 8-29-94. I am reminding you that 3 consecutive days of ULWP constitutes abandonment of position and may be subject to a recommendation for disciplinary action not excluding suspension and/or termination. An accumulation of 10 or more days of ULWP may warrant a recommendation for termination. Your job performance is important to us and we would like to assist you to improve. If you need assistance, please come to the operations office to discuss this matter. On May 11, 1995, Snell and Sleeth held a conference- for-the-record with Respondent concerning Respondent's attendance record. Snell prepared and provided to Respondent on May 17, 1995, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: A Conference-for-the-Record was held in my office on May 11, 1995. Yourself, Ms. Wynona Sleeth, Coordinator and this administrator were present. The conference was held to discuss your attendance to date. You had notification of [your] right to union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed by the District since May 2, 1984. You were reminded of memos you had received and signed notifying you of this school year's absenteeism. A calendar highlighting the days you were absent was explained to you and you were given a copy of Article XI, Section 1(D) of the union contract. You were asked if you needed the Employee Assistance Program. You replied that you did not need it. I then read the [written absence from] worksite directive to you and what you were required to do from this point on and that non-compliance could lead to further disciplinary measures up to and including suspensions or termination. Respondent had received a copy of the "[written absence from] worksite directive" the day of the conference-for-the- record. It read as follows: Please be advised that you have been absent forty-four days (44) days from the worksite during the 1994/95 school year. Since your absence from duties adversely affects the effective operation of this worksite, you are apprised of the following procedures concerning future absences: Intent to be absent must be communicated directly to this administrator or the administrator on duty before your assigned shift. Absence for illness must be documented by your treating physician and a written medical note presented to this administrator upon your return to the site. These directives are in effect upon receipt of this notice and are necessary to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities and could lead to further disciplinary action up to and including suspensions or termination. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1994-1995 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 26 days: August 30, 1994; September 28, 1994; October 19, 20, 26 and 31, 1994; November 2, 10 and 28, 1994; December 22, 1994; January 25, 1995; February 8, 9, 14 and 16, 1995; March 7, 10 and 22, 1995; April 17, 26 and 28, 1995; May 1, 3, 17 and 26, 1995; and June 5, 1995.3 Respondent was offered a contract for the following school year and she accepted the offer. The 1995-1996 School Year On October 2, 1995, Respondent received a written Contact Report from Sleeth concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: You had 9 hours of unauthorized absences for the pay period 8/25-9/7/95. You need to work on having a good attendance record. On October 18, 1995, Snell observed Respondent smoking a cigarette on a school bus. Respondent knew or should have known that such conduct was prohibited. Snell confronted Respondent and reminded her that smoking tobacco products on a school bus was forbidden. On December 12, 1995, Respondent received a written Transportation Operations Procedures Reminder from Sleeth concerning unauthorized absences on August 28 and 30, 1995; September 14, 1995; October 6 and 26, 1995; and November 6 and 29, 1995. On March 5, 1996, Snell held a conference-for-the- record with Respondent at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 14, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On March 5, 1996, at 10:15 a.m. a Conference- for-the-Record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not want union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of Unauthorized leave. Since August 28, 1995, you have accumulated 15 unauthorized absences; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19 and 1/23/96. Your absence from your duties directly impacts the effective operation of this worksite. You received a copy of Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract and these documents were reviewed with you. District Support Programs are available for you to contact at 995-7111 if you so desire. You stated that you understand the seriousness of the problem and will try to improve your attendance. Any further instances of Unauthorized Absences may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. Respondent also received from Snell on March 14, 1996, the following written warning (dated March 11, 1996): As of January 23, 1996, you have been absent on 15 occurrences without authorization. As per the AFSCME contract, Article XI, Section 4-B[:] "Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence." You are hereby officially warned that if you continue to have unauthorized absences disciplinary action my result, up to and including suspension, termination, or non- reappointment. On April 30, 1996, Respondent received a written directive from Snell to report for another conference-for-the- record in Snell's office at 9:15 a.m. on May 7, 1996, to discuss her "unauthorized leave and job performance." Respondent failed to report as directed. The conference-for-the-record was rescheduled for May 17, 1996,and ultimately held on that date. Snell prepared and provided to Respondent on May 28, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Friday, May 17, 1996, at 9:15 a.m. a conference-for-the-record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave. Since August 28, 1995, you have accumulated 23 occurrences of unauthorized leave which total 12 1/2 days; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19, 1/23/96, 4/2, 4/4, 4/17, 4/26, 4/29, 5/3, 5/13, and 5/16/96. Your absence from your duties directly impacts the effective operation of this worksite. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract were reviewed. The District Support Agency was offered and is available for you and may be contacted at 995-7111 if you so desire. You agreed to call in as soon as you know you are going to be out and to bring documentation in the next working day. Your record of unauthorized absences will be reviewed and this review may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1995-1996 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 30 days during the regular school year: August 28 and 31, 1995; September 14, 1995; October 6 and 26, 1995; November 6 and 29, 1995; December 4, 1995; January 5, 8, 10, 12, 18, 19 and 23 1996; February 16, 1996; March 19, 21, 26 and 28, 1996; April 2, 4, 17, 26, and 29, 1996; May 3, 13, 16 and 17, 1996; and June 4, 1996.4 Respondent was offered a contract for the following school year and she accepted the offer. The 1996-1997 School Year On September 4, 1996, and October 2, 1996, respectively, Respondent reported to work six and ten minutes after the scheduled starting time (6:00 a.m.) of her morning shift. On both of these occasions she received a written Transportation Operations Procedures Reminder regarding her obligation to report to work on time. Respondent also received written Transportation Operations Procedures Reminders for unauthorized absences in November of 1996, on the 5th (afternoon shift), 13th (afternoon and morning shifts), 14th (afternoon and morning shifts), 15th (afternoon shift), 20th (afternoon and morning shifts) and 26th (afternoon shift) of that month, and for reporting eight minutes late to work for her afternoon shift on November 25, 1996. Along with the written Transportation Operations Procedures Reminders concerning her November 5 and 13, 1996, unauthorized absences, Respondent was given an explanation of the provisions of Section 9 of the School Board's Transportation Rules and Policies Manual and Article V, Section 27, of the AFSCME Contract, as well as copies of these provisions. The written Transportation Operations Procedures Reminders concerning Respondent's November 14, 15, 20, and 26, 1996, unauthorized absences, and her tardiness on November 25, 1996, were each accompanied by the following "verbal warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On December 6, 1996, Respondent was referred by Keith White, an administrative assistant at the Center, to the School Board's Employee Assistance Program because of his "concerns" regarding Respondent's unauthorized absences. Respondent was advised of this supervisory referral on December 9, 1996. Respondent declined to participate in the School Board's Employee Assistance Program and continued to have erratic attendance. Respondent received, on January 5, 1997, and March 6, 1997, written Transportation Operations Procedures Reminders concerning her unauthorized absences and tardiness, each of which contained the following "written warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On March 11, 1997, Snell held a conference-for-the- record with Respondent, at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 20, 1997, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Tuesday, March 11, 1997, at 10:00 a.m. a conference-for-the-record was held with you in the office of the Director, South Regional Transportation Center. In attendance were Ms. Willie McKinney, Coordinator, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since 5/2 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave and job performance. Since March 19, 1996 you have accumulated 28 whole days of unauthorized leave from 42 occurrences. Your absence from your duties directly impacts the effective operation of this work site. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract, along with all attached warnings were reviewed. A referral to the District Support Agency [Employee Assistance Program] was made on December 6, 1996. The case was closed due to the fact that you declined to participate. You agreed to call in as soon as possible when you must be absent and to bring documentation in the next working day. You also agreed that you would not be absent unless absolutely necessary. Your record of unauthorized absences will be reviewed with Transportation Administration and the Office of Professional Standards and may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. By memorandum dated March 27, 1997, Snell brought the matter of Respondent's "attendance problems" to the attention of Jerry Klein, the senior executive director of the School Board's Transportation Department, and inquired of Klein if he "would like to move forward with [the] dismissal of Ms. Gardner." Klein, on April 1, 1997, sent the following memorandum to Barbara Moss, an executive director in the School Board's Office of Professional Standards: Ms. Jennifer M. Gardner, School Bus Aide, South Transportation Center, employee #145489, has accumulated 28 days of Unauthorized Leave Without Pay (ULWP) in the last 12 months. Attached please find supportive documentation from Ms. Pat Snell, Director, South Transportation Center. It is requested that Ms. Gardner be recommended for dismissal for violation of Article XI, Section 4(B) of the Collective Bargaining Agreement, excessive absenteeism. Your assistance in obtaining Board approval is appreciated. After reviewing the matter, Moss (by memorandum received by Respondent on April 17, 1997) directed Respondent to appear at a conference-for-the-record on April 30, 1997, in the Office of Professional Standards to discuss Respondent's "attendance to date, and [her] future employment status with the Dade County Public Schools." The conference-for-the-record was held on April 30, 1997, as scheduled. Moss subsequently prepared and later, on June 3, 1997, provided to Respondent a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Moss wrote the following: Action Taken You were offered an opportunity to resign your position with Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences: Intent to be absent must be communicated directly to the designated supervisor. Absences for illness must be documented by your treating physician and a written medical note presented to the designated supervisor upon your return to the site. If it is determined that future absences are imminent, leave must be considered and procedures for Board approved leave implemented if eligible to apply for leave. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit, to the services provided to students, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review [by] the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A-1.21, Employee Conduct, and School Board Rule 6Gx13-4C-1.02, Non-instructional Personnel. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects performance. You were reminded of the prime directive to maintain a safe working environment for all students and that your actions violated this directive. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Senior Executive Director in the Office of Professional Standards and the Associate Superintendent in the Office of Labor Relations and Personnel Management. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension, demotion, or dismissal. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. On June 5, 1997, Respondent reported for work with the smell of alcohol on her breath. Furthermore, she was unsteady on her feet and her speech was slurred. After conferring with Klein and Moss, Snell directed Respondent to submit to alcohol and drug testing at the Baptist Medical Group's facility in Homestead, Florida. Respondent went to the facility that same day5 and submitted to breath-alcohol testing, which revealed that Respondent had a breath-alcohol level of .191 and that she was under the influence of alcohol to the extent that her normal faculties were impaired. At the facility that day (June 5, 1997), Respondent also provided a urine specimen for testing. The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) D.O.T. Custody and Control Form, to LabCorp's laboratory in North Carolina for analysis and testing. The labeled and sealed container with the specimen and accompanying form were received by LabCorp on June 7, 1997. Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen. An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolites produced when cocaine and marijuana are ingested and metabolized in the body. Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, a reliable and accurate method of confirmatory testing, was utilized. The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine and marijuana metabolites in concentrations consistent with, and indicative of, Respondent's ingestion of cocaine and marijuana prior to the collection of her urine specimen. The drug test results were reported to the School Board and the Medical Review Officer (at the National Medical Review Offices, Inc., in Los Angles, California). On June 10, 1997, Respondent received a memorandum from Snell directing Respondent to contact the Medical Review Officer "as soon as possible." On June 10, 1997, after examining the test results and speaking with Respondent, who admitted that she had used both cocaine and marijuana, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no legitimate medical explanation for the presence of the cocaine and marijuana metabolites in the urine specimen Respondent had provided. On June 11, 1997, Moss held a conference-for-the-record with Respondent. The results of the alcohol and drug tests to which Respondent had submitted were discussed at the conference. Upon being told of the test results, Respondent stated, "I don't know about the cocaine, but I am aware of the marijuana. I was very depressed and was with some friends who were using marijuana and joined them in using." She further stated that she did not drink alcoholic beverages when she worked. Also addressed at the conference were Respondent's unauthorized absences. During the 12-month period preceding the conference (June 12, 1996, to June 11, 1997), she had been absent without authorization on the following 37 days for a total of 147 hours or 24.5 "workdays," as that term is defined in Article V, Section 18, of the AFSCME Contract: July 2, 1996 (3 hours); July 29, 1996 (3 hours); October 31, 1996 (3 hours); November 5, 1996 (3 hours); November 13, 1996 (6 hours); November 14, 1996 (6 hours); November 15, 1996 (3 hours); November 19, 1996 (3 hours); November 20, 1996 (6 hours); November 26, 1996 (3 hours); December 4, 1996 (3 hours); December 11, 1996 (6 hours); December 13, 1996 (3 hours); December 18, 1996 (6 hours); December 19, 1996 (3 hours); December 20, 1996 (3 hours); January 8, 1997 (3 hours); January 22, 1997 (3 hours); January 23, 1997 (6 hours); January 27, 1997 (6 hours); February 3, 1997 (6 hours); February 7, 1997 (3 hours); February 12, 1997 (6 hours); February 18, 1997 (3 hours); February 19, 1997 (6 hours); February 20, 1997 (3 hours); February 24, 1997 (3 hours); February 26, 1997 (3 hours); March 3, 1997 (3 hours); March 20, 1997 (3 hours); March 24, 1997 (6 hours); April 15, 1997 (3 hours); April 21, 1997 (6 hours); April 24, 1997 (3 hours); May 12, 1997 (3 hours); May 23, 1997 (3 hours); and June 5, 1997 (3 hours). Respondent was given another assignment at the Center pending further School Board review of her employment At its July 23, 1997, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for just cause, including but not limited to excessive unauthorized absence and violation of Drug-Free Work Place Policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2007.
The Issue The issue for consideration in this hearing is whether Petitioner School Board should terminate Respondent's employment because of the alleged misconduct outlined in the letters of Termination dated April 2, 1996 and May 6, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, School Board of Sarasota County, (Board), operated a system of school busses to transport students to and from the public schools operated by and within the county. The Respondent, George James Bock, was employed by the Petitioner as a school bus driver and was assigned to drive bus number 9101. Sometime in January 1996, but prior to January 10, while in the process of picking up children at Englewood Elementary School for the purpose of transporting them to their homes at the end of the school day, Respondent had trouble getting his bus started when it was parked near the school and the children were aboard. He was, at the time, observed by Marcia Strickland, a pre-school teacher's aide, whose job it was to see the children onto the buses in the afternoon after school. Ms. Strickland saw Respondent get up out of his driver's seat, and she got onto the bus to see if he needed any help. She saw Respondent go to the back of the bus and do something she could not see and then return to his seat. When he thereafter tried to start the bus it started and he drove off. Respondent and Ms. Strickland did not have a conversation during this period which lasted about a minute, nor did she see him attempt to use his radio. On the morning of January 12, 1996, Respondent had the usual responsibility to pick up students attending Venice Middle School and transport them to school. When they had been delivered without incident, he had some time to spare before he was to pick up the elementary school children to be transported to their school, Englewood Elementary. In the interim between runs, it was his practice to drive the empty bus to the old K-Mart parking lot near Venice where he would park his bus in the company of other school bus drivers who were also between runs, and he did so on this particular day. The middle school run went off without difficulty, however, during the run a buzzer went off in the bus several times. This was not an unusual occasion as it frequently happens when the bus passes over a bump in the road at US highway 41 as he deadheads from the first to the second run. The weather was inclement on the day in question and appears to have been quite wet. Respondent did not leave his bus while it was in the parking lot nor did he speak with any of the other drivers. When it became time for Respondent to leave the K-Mart lot for his second run, he was unable to get the bus started. He attempted to do so for several minutes but the bus would not start. He checked all doors and exits of the bus to insure none of them were insecure but all was well. He also checked to insure the bus was in neutral and it was. Notwithstanding all he tried, Respondent was unable to get the bus started. Finally, he discovered a problem with a lock on the back door which he tried to fix unsuccessfully, and he attempted to call in to his dispatcher by radio to advise that because of his problem he would be late on his run, but his efforts to raise central or other drivers were also unsuccessful. Respondent ultimately got the bus started, but by that time he was late and only one child was still waiting for pick-up. He subsequently determined that some of the parents of the students who ordinarily rode on his bus made the pick-up and took the children to school when it appeared he would be late. Each bus driver is furnished with a pre-trip log book which he or she is required to fill out regarding each trip. The book for Respondent's bus on January 12, 1996, and for every school day in January 1996 prior to that date reflects every item marked OK for both the morning and afternoon runs, and no item is identified as having been a problem. The page is signed by the Respondent. Respondent indicates he didn't make any notations in the log book about the door buzzer going off because there were no problems at 6:45 AM when he filled out the log. The problem with the buzzer normally did not prevent him from starting the bus except for one time approximately two weeks previously. This must have been the incident referred to by Ms. Strickland. Though Respondent did not make any entries in the bus log regarding this problem he did fill out an incident report regarding it and a driver's repair request regarding the problem. The incident report bears the improper date of January 10, 1996, but this was explained by Respondent as being merely his error when he filled out the report on January 12. This explanation is accepted. The bus was checked out by Wendell Prior, a lead mechanic with the School Board's Taylor Ranch compound from which Respondent operates. Mr. Prior also conducts monthly safety inspections of the busses assigned to his shop and corrects problems reported to him. He is certified as an ASE certified mechanic and has attended several schools to keep his skills current. Mr. Prior, along with an assistant mechanic, thoroughly checked out the Respondent's report regarding the buzzer on bus 9101 which reportedly caused the bus not to start. He also checked the radio which Respondent had reported as faulty. Neither Prior or the other mechanic was able to duplicate Respondent's problem or find any defect which would prevent the bus from starting. They saw no foreign material and found no evidence of attempted repairs. Mr. Prior also checked out the bus' battery system and found it to be working properly. As a result of all his efforts to find something wrong or recreate the problem allegedly experienced by Respondent, Mr. Prior could find no defects and he has made no repairs to the bus buzzer system since that time. Prior also tried out the radio, which is one of the more powerful bus radios used in the system, and though he was unable to reach central dispatch, he was able to reach other busses clearly. He could find no problem with the radio. Though it may seem improbable, there is no major inconsistency between the testimony of Mr. Bock and that of Mr. Prior. Other bus drivers testifying for the Respondent indicated that the area where the buses congregate during the hiatus between runs is a difficult area for radio reception. These drivers have been able to reach other busses in the area but not the central dispatch radio from that site. In addition, Mr. Wass, formerly a school bus driver and an individual with extensive experience in engineering and automotive electrical systems, has also experienced problems with the back door of the school bus he drove which prevented the bus from starting. He determined that the back door cut-off latch frequently moves while the bus is in motion, and when the bus is subsequently turned off, it cannot be restarted with the latch in that position. He has also experienced intermittent circuitry problems with his bus which was aggravated by wet weather. Taken together, the evidence indicates with regard to this allegation that in fact Respondent was late for the second run to Englewood Elementary School because of mechanical or electrical problems with his bus which were intermittent and beyond his control. His failure to contact central dispatch so that alternative arrangements could be made to transport his students was occasioned by his failure to raise central by radio due to a blind spot for transmission at the location where he was parked and unable to start the bus. To be sure, he probably could have relayed a notification to central through another bus driver, which ability to do so was indicated by the other drivers. However, Respondent claims he tried and was unable even to reach another driver. Respondent was charged with a failure to make the run on time, not a failure to call in to central. Petitioner's allegations that interim stops at the shopping center were not authorized is irrelevant to the issue herein. In any case, the evidence tends to indicate that such practice was wide-spread among the drivers and was accepted by the system managers. As a result of the Respondent's failure to pick up the elementary school children on time on January 12, 1996, on January 15, 1996, the parent of one of the children on the run in issue wrote a letter to Mr. Girard, the supervisor of all official transportation for the school system, complaining of the Respondent's failure to make the pick up on time. This mother, who provided transport for several of the stranded children that morning, claimed to have found the bus parked in the K-Mart parking lot, and when she sounded her horn, Respondent rose up from one of the middle seats on the bus and went to the driver's seat. The following day, the principal at Englewood Elementary School wrote to Mr. Girard complaining of the failed pick-up on January 12, and raised the question of whether Respondent had been sleeping, citing other instances of Respondent's inappropriate performance of his duties, none of which are relevant to the issues herein. Because of these complaints, on March 18, 1996, Mr. Girard forwarded a memorandum to Gerald Padfield, the Board's Supervisor of Personnel, informing him that a decision had been reached to proceed with disciplinary action consistent with the terms of the union contract. In his letter, Mr. Girard cites several prior actions taken with regard to the Respondent and which includes two previous letters of instruction, a verbal and a written reprimand, and a three-day suspension. Respondent contends that the two letters of instruction were not disciplinary action, but were imposed to correct improper performance on his part. The three day suspension was brought to arbitration upon Respondent's filing of a grievance. While grounds for discipline were found to exist, the three-day suspension was reduced to a one day suspension. It should also be noted that Mr. Girard's letter contains several inaccuracies as to dates of incidents and/or corrective action. For the most part, however, the document demonstrates that the Board has followed a course of progressive discipline in its dealings with the Respondent. Respondent's Exhibit C is a document which outlines in detail the disciplinary history of the Respondent and which includes the formal actions previously cited. In addition, however, there is evidence of other incidents involving Respondent concerning which incidents complaints were received by the Board and for which non-disciplinary action was taken by administration personnel. These instances of uncharged activity by the Respondent have no bearing on the instant determination of whether Respondent committed the offenses alleged in the cases in issue but were admitted solely for the purpose of establishing that the Board had followed a policy of progressive discipline in its dealings with the Respondent. Mr. Bock is a member of the classified bargaining unit represented by the local teacher's union which has entered into a collective bargaining agreement with the Board. Article XXII of that agreement provides for the use of progressive discipline except in emergency or flagrant violation situations. Pertinent hereto is the agreement definition of progressive discipline which calls for termination as the next step after suspension with or without pay. On March 5, 1996, Marge Sams, a safety facilitator with the Board's transportation department, located at the Taylor Ranch bus compound, while in a conversation with another bus driver, observed Respondent smoking a cigarette while he was standing in front of a school bus which was parked by a fuel pump. She could tell Respondent was smoking by the movement of his hand to his mouth and a puff of white which appeared immediately thereafter. She started out the door to tell him not to smoke there when he threw the cigarette to the ground and crushed it out with his foot. He came toward her, and when she started to ask him not to smoke near the fuel pumps, he barely acknowledged her and passed by her out the other door to where he met two other people. A permitted smoking area is located just outside the bus office building at which a picnic table and benches are located. A butt can is located on the table for the use of smokers. While this smoking area is in the general vicinity of the fueling pumps, it is not located adjacent to the pumps and does not create a safety hazard as would smoking at the pumps. Located at the pump service island where Respondent was seen smoking is a reasonably large, easily readable blue and white sign which clearly indicates that no smoking is permitted at the pump during fueling operations, by order of the state fire marshal. These signs were in place on March 5, 1996. The pump just below and to the side of the aforementioned sign bears the indication that it contains diesel fuel. It should also be noted, however, that next to the building, just outside the office, at some point in time, was located an open flame space heater. Ms. Sams' observation of the Respondent on March 5, 1996 was, by her own admission, very brief and she was not paying close attention to him. It was the puff of white smoke which caught her attention and caused her to go outside right away. Ms. Sams does not know what Respondent was doing at the pump at the time. His job during that period was to wash busses and he might have been doing that. However, she is very sure that at the time she observed the respondent smoking at the pump island, there were other busses fueling there. In her capacity of safety facilitator at the Taylor Ranch compound Ms. Sams is responsible for setting policy, and though she is not sure, she believes the policy against smoking is written down. It is a matter of judgement and compliance with the general orders of the state fire marshal. Though she was unwilling to define what is a safe distance from a pump to smoke, in this case she observed the respondent smoking in an area immediately contiguous to where two other busses were being fueled, well within 15 to 20 feet of them, and she is satisfied that is not safe. Mr. Bock does not deny smoking at the time and place alleged in the charging letter, but does deny ever smoking during fueling operations. Based on her observation of Respondent on March 5, 1996, Ms. Sams drafted a written memorandum to Mr. Girard, the Board's bus business manager, reporting what she had observed. While she admits that memorandum does not reflect fuel was being dispensed at the time and agrees such a comment should have been included, she is sure fuel was being dispensed. It is so found. It is also found that many drivers and compound personnel smoke at the picnic table outside the bus office, even while fuel is being dispensed at the pump and neither Respondent nor Mr. Prior has ever heard anyone say anything about that. When Mr. Girard received the report of Respondent's late pick-up on January 12, 1996, he immediately caused the allegation to be looked into. Based on the report that Respondent had had bus trouble, Mr. Girard, the same day as the incident, also had that looked into, and when nothing wrong could be found with the bus, he released it for the afternoon run. According to Mr. Girard, when a bus driver has problems with his run, he is supposed to radio in or call by phone to bus central so that children are not left standing at a bus stop. He admits that from time to time communications problems exist in that certain areas of the county are dead areas for radio transmissions. In addition, some of the buses have smaller radios than others and do not have adequate power to reach central from all areas serviced. Respondent's bus, however, had one of the bigger radios which should have been able to reach central. Other evidence of record, however, has confirmed the existence of dead areas, and, conceivably, Respondent was in such an area when he was unable to get the bus started. However, he could have called another bus and requested his message be relayed, or he could have used a phone line to call in. He did neither even though the Board's policy on calling in was discussed with Respondent prior to January 12, 1996 and at the time he was advised he should lay over on school board property. This information is contained in a written memorandum dated May 3, 1993 from the Board's director of transportation to all bus drivers. However, neither the failure to call in nor the layover at an unauthorized location was charged. As a result of the smoking incident, when added to Respondent's prior record, on January 30, 1996, Mr. Girard advised Respondent in writing that a meeting was scheduled to discuss this matter on January 31, 1996. However, the meeting was rescheduled for February 7, 1996 at Respondent's request. When the meeting was held, Girard and Respondent discussed what disciplinary action would be taken consistent with the progressive discipline policy called for in the collective bargaining agreement. The Respondent's disciplinary file with the Board reflects a Memorandum of Instruction administered on January 22, 1991 and a Letter of Instructions issued on December 12, 1991. These documents clearly indicate on their face that they are not disciplinary, however. Nonetheless, Respondent was also administered a verbal reprimand on February 3, 1992, followed by a written reprimand administered on April 7, 1992. In addition, Respondent was administered a three day suspension in the latter part of 1995 for smoking on his bus. Respondent grieved this action and the matter went to arbitration where the arbitrator's Decision and Award dated August 27, 1996 upheld the imposition of a suspension but reduced the term from three days to one day. Because of the Respondent's disciplinary record, Mr. Girard recommended termination of Respondent's employment to the superintendent who accepted that recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Sarasota County reject the recommendation of the Superintendent regarding the alleged incident on January 12, 1996 and dismiss the charge, but accept the Superintendent's recommendation regarding the allegation of inappropriate smoking and enter an order terminating the employment of George James Bock with the Board. DONE and ENTERED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore Post Office Box 49377 Sarasota, Florida 34230 Charles L. Scalise, Esquire West Russell Snyder, P.A. 355 West Venice Avenue Venice, Florida 34285 Thomas H. Gaul, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3331 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Educatin The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
