The Issue As to case 89-3568BID, whether the bid protest filed by B & L Service, Inc., shall be upheld. As to case 89-3569BID, whether the bid protest filed by AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, shall be upheld.
Findings Of Fact On April 7, 1989, Respondent, Department of Health and Rehabilitative Services (DHRS), published and issued a Request for Proposals (RFP) which solicited proposals for the provision of twelve identified categories of transportation services to Medicaid recipients in DHRS District X. DHRS issued the RFP because it did not want to award the contract primarily on the basis of price. The purpose of the RFP was to solicit proposals which evidenced a demonstrated capability and reliability for providing cost-effective, courteous and prompt transportation services to transportation disadvantaged Medicaid recipients in District X to and from medical appointments and Community Mental Health services. The RFP identified twelve transportation categories which would be the subject of the contract to be awarded. The categories were designated by the letters a-1. Petitioner, B & L Service, Inc. (B & L Service), and Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation (AAA Wheelchair) submitted proposals that were accepted and evaluated by DHRS. Petitioner, B & L Service timely protested the award to AAA Wheelchair of the categories of service identified in the RFP as category f. and category This protest forms the basis for Case 89-3568BID. Petitioner, AAA Wheelchair timely protested the award to B & L Service of several categories of service for which both AAA Wheelchair and B & L Service had submitted proposals. This protest forms the basis for Case 89-3569BID. An evaluation committee consisting of four DHRS employees and one employee of the Florida Department of Transportation was appointed to evaluate the different proposals. The RFP advised all parties that the evaluation committee's recommendations would be reviewed by the District Administrator who would make the final determination. The evaluation committee analyzed each proposal using the rating sheet that was included as a part of the RFP. The following categories and point values were used to analyze each proposal: Response to Statement of Purpose/Need Project Understanding - 10 points Method of Service Provision - 20 points Demonstrated Organizational Capability - 10 points Rate Analysis - 10 points Categories f. and g. are as follows: Demand-responsive wheelchair transpor- tation requested at least 24 hours prior to the provision of service: approximately 800-1000 trips per month Demand-responsive wheelchair transpor- tation requested less than 24 hours prior to the provision of service: approximately 15-30 trips per month The evaluation committee reasonably determined that it should recommend one provider for categories f. and g. to avoid unnecessary confusion for the recipients of the respective services. Category f., which would involve between 800-1000 trips per month, was a more significant category than category g., which would involve 15-30 trips per month, in terms of number of persons served and the amount of money involved. It was reasonable for the winner of category F. to be awarded category g. The evaluation committee awarded B & L Service the following points for category f.: Category I: 45 Category II: 85 Category III: 27 Subtotal: 158 Category IV. 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category f.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 38 Grand Total 204 The evaluation committee awarded B & L Service the following points for category g.: Category I: 45 Category II: 86 Category III: 27 Subtotal: 158 Category IV: 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category g.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 32 Grand Total 198 B & L Service and AAA Wheelchair received the same number of total points for category f. The evaluation committee voted to break the tie for category f. between B & L Service and AAA Wheelchair. By a vote of 4 to 1, the evaluation committee voted to recommend that B & L Service be awarded the contract for category f. and, consequently, for category g. There was no justification or explanation given by the committee for its vote. The procedures under which the committee was operating did not provide for a vote in the event of a tie. B & L Service proposed to perform the services required for categories f. and g. for $14.70 per trip while AAA Wheelchair proposed to provide the services for category f. for $15.00 per trip and the services for category g. for $16.00 per trip. The lower price proposed by B & L Service enabled it to score higher than AAA Wheelchair in category g. and to tie AAA Wheelchair in category f. AAA Wheelchair scored higher than B & L Service in categories I-III of categories f. and g., the areas designed to evaluate the provider's ability to deliver quality service. Paul V. Freedlund, the District Administrator for DHRS District X delegated to Carmen Gutierrez, the Acting Deputy District Administrator for DHRS District X, the responsibility to review the RFP process to ensure its validity. Ms. Gutierrez was instructed by Mr. Freedlund to recommend the providers she considered most capable of performing the contracts for the respective categories of service based on the information that was available to her. Ms. Gutierrez delegated to Nancy Porter, the Medicaid Program Administrator for DHRS District X, the responsibility to review the RFP process and to make a recommendation as to which provider should receive the award for categories f. and g. Ms. Porter was also told to justify her recommendation. B & L Services had been the provider of the services required by categories f. and g. during the 1988-1989 DHRS fiscal year. AAA Wheelchair had been the provider of the services required by categories f. and g. for several years immediately preceding the 1988-1989, DHRS fiscal year. During their respective periods of performance, DHRS monitored their performances and maintained monitoring reports which reflected any deficiencies in the performances. Mr. Freedlund told both Ms. Gutierriez and Ms. Porter that because of the close scores any monitoring reports for the competing providers should be reviewed and to go with the provider they felt was better able to render the service effectively. Nancy Porter, pursuant to the instructions she had received, reviewed the proposals submitted by B & L Service and by AAA Wheelchair, reviewed the evaluation committee's work, and reviewed the monitoring reports of B & L Service for the period it performed the subject services and the monitoring reports of AAA Wheelchair for the period it performed the subject services. Nancy Porter recommended that AAA Wheelchair be awarded the contract for the category f. and the category g. services. In her memo to Paul Freedlund dated June 2, 1989, she justified her recommendation to award the category f. and category g. services, together with other categories of service that are not being contested, as follows: Based upon monitoring reports, past performance under prior contracts and response to the RFP, this provider appears to have the ability to provide the quality of services required in the bid specifications, thereby making them the most advantageous to the state and the lowest qualified bidder. Nancy Porter's recommendation to Paul Freedlund was that B & L Service be awarded five of the twelve categories of service and that AAA Wheelchair be awarded the other seven categories of service. Paul Freedlund accepted Nancy Porter's recommendation. These protests followed the announcement of the intended awards. B & L Service's protest is based, in part, on contact between Nancy Caputo, president of AAA Wheelchair, and DHRS after the evaluation committee had met, but before the intended final decision was made. B & L Service's protest is also based on DHRS not following the recommendations of its committee as to categories f. and g. On May 17, 1989, Vera Sharitt, the DHRS contract manager for Medicaid transportation, wrote Nancy Porter advising her of the evaluation committee's results and recommendations. On May 18, 1989, Nancy Porter prepared a memo to Paul Freedlund which erroneously stated that B & L Services had received the highest points from the evaluation committee for category f. as well as category g. On May 19, 1989, Karen Caputo received a copy of Nancy Porter's memo dated May 18, 1989. Karen Caputo telephoned Nancy Porter, advised that an error had been made in the memo of May 18, 1989, and proceeded to tell Nancy Porter that her company could provide much better services than could B & L Service. Karen Caputo was upset when she called Nancy Porter. Nancy Porter listened and agreed to correct the error in her memo to reflect that there had been a tie in points for category f. instead of B & L Service being the point winner. On May 23, 1989, Nancy Porter prepared a second memo to Paul Freedlund which corrected the error in her memo of May 18, 1989. On May 23, 1989, Karen Caputo wrote Paul Freedlund a letter which discussed the merits of her proposal and the higher quality of service that had been provided by her company as compared to B & L Service. Her letter also asserted that B & L Service had the financial ability to offer lower prices than her company and also asserted that her company was a minority owned business. The contact Karen Caputo had with the DHRS employees occurred before Mr. Freedlund instructed Ms. Gutierrez and Ms. Porter to review the RFP process and to make a recommendation since the scores awarded by the evaluation committee were so close. Karen Caputo's contact resulted in the correction of the error in the memo of May 18, 1989. The contact Karen Caputo had with the DHRS employees did not, however, unduly influence their recommendations and did not constitute an unfair interference with the contract award process. The protest of AAA Wheelchair is based on its assertion that B & L Service was not a qualified proposer and that its response to the RFP was deficient. B & L Service's performance of the f. and g. categories of service for the fiscal year 1988-1989 did not disqualify it as a proposer. While a number of deficiencies were noted in the monitoring reports for this period of time, DHRS had taken no steps to disqualify B & L Services as a proposer. B & L Service was a qualified proposer. The response to the RFP submitted by B & L Service was not deficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3568BID a Final Order which denies the bid protest of Petitioner, B & L Service, Inc. IT IS FURTHER RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3569BID a Final Order which denies the bid protest of Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation. DONE AND ENTERED this 8th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1989. Appendix to the Recommended Order in Consolidated Cases 89-3568BID and 89-3569BID PETITIONER'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of B & L Service, Inc., are addressed as follows: The proposed findings of the first paragraph are addressed in paragraphs 1 and 4. The proposed findings of the second paragraph are rejected as being unnecessary to the results reached. The proposed findings of the third paragraph are addressed, in part, in paragraphs 1 and 2 and are rejected in part as being unnecessary to the results reached. 4 -5. The proposed findings of the forth and fifth paragraphs are rejected as being unnecessary to the results reached. The proposed findings of the sixth paragraph are subordinate to the findings of paragraph 5. The proposed findings of the seventh paragraph are addressed in paragraph 8. The proposed findings of the eighth paragraph are addressed in paragraph 9, 10, 12, 13, and 16. The proposed findings of the ninth paragraph are addressed in paragraph 11 and 16. The proposed findings of the tenth paragraph are addressed in paragraph 24. The proposed findings of the eleventh paragraph are addressed in part in paragraph 25 and are rejected in part as being contrary to the weight of the evidence. The proposed findings of the twelfth paragraph are addressed in part in paragraph 25 and are rejected in part as being unnecessary to the results reached The proposed findings of the thirteenth paragraph are addressed in paragraph 25. The proposed findings of the fourteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the fifteenth paragraph are addressed in part in paragraph 25 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the sixteenth paragraph are rejected as being contrary to the weight of the evidence and as being recitation of testimony. The proposed findings of the seventeenth paragraph are addressed in part in paragraph 21 and are rejected in part as being unnecessary to the results reached. The proposed findings of the eighteenth paragraph are rejected as being in conflict with the findings of paragraph 27. The proposed findings of the nineteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being contrary to the evidence. The proposed findings of the twentieth paragraph are addressed in paragraph 19. The proposed findings of the twenty-first paragraph are addressed in part in paragraphs 21 and 22 and are rejected in part as being unnecessary to the result reached and as being contrary to the evidence. The proposed findings of the twenty-second paragraph are rejected as being contrary to the findings of paragraphs 22 and 27. The proposed findings of the twenty-third paragraph are rejected. The monitoring reports, taken as a whole, support the recommendations of Nancy Porter. The selective comparison of statistical information is unnecessary to the conclusions reached. The proposed findings of fact, submitted on behalf of AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, are addressed as follows: 1-2. Addressed in paragraph 1. Addressed in paragraph 8. Addressed, in part, in paragraph 3 and are rejected in part as being unnecessary to the results reached. 5-8. Rejected as being unnecessary to the results reached. Rejected as being contrary to the evidence. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being argument instead of a finding of fact. Rejected as being unnecessary to the results reached and as being argument. 15-20 and are rejected as being unnecessary to the results reached and as being argument. 21-24 and are rejected as being unsupported by the evidence and as being argument. 25-26 and are rejected as being unnecessary to the results reached. 27-28 and are rejected as being unsupported by the evidence and as being argument. 29. Rejected as being contrary to the evidence and as being argument. RESPONDENT'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of the Department of Health and Rehabilitative Services are addressed as follows Addressed in paragraphs 1, 2, and 3. Addressed in paragraphs 4 and 10. Addressed in paragraph 8. Addressed in part in paragraph 8. Rejected in part as being unnecessary to the results reached. Addressed in paragraph 9. 6-7. Addressed in paragraphs 12, 13, 14, 15, and 16. Addressed in paragraph 11. Addressed in paragraph 16. Addressed in part in paragraphs 12, 13, 14, 15, and 17. Rejected in part as being subordinate to the findings made. 11-12. Rejected as being subordinate to the findings made. Addressed in part in paragraphs 18 and 19. Rejected in part as being unnecessary to the results reached. Addressed in paragraphs 21 and 22. Addressed in paragraph 27. 16-18 Rejected as being conclusions of law. COPIES FURNISHED: Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Suite 406 Fort Lauderdale, Florida 33301 John M. Camillo, Esquire VERNIS & BOWLING, P. A. 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Karen Caputo, President AAA Wheelchair Wagon Service Post Office Box 2281 5890 Rodman Street Hollywood, Florida 33023 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether respondent discriminated against petitioner on account of his gender in failing to hire or rehire him as a school bus driver?
Findings Of Fact Respondent Escambia County School Board transports some 32,000 students, three years old and up, to and from school every day. Three male route supervisors answer to respondent's male director of transportation, each overseeing approximately a third of the school bus routes and regular drivers, 90 percent or more of whom are women. In the event a regular driver is unavailable, a route supervisor arranges for a substitute driver, most of whom are also women, from the approved list. Service as a substitute school bus driver is a prerequisite to employment as a regular school bus driver. When petitioner was hired, he was told he would not be considered for a regular position until he had driven two years as a substitute. At the time of the hearing, respondent's policy precluded employment as a regular school bus driver before three years' work as a substitute. Substitute drivers' seniority and the quality of their service dictate who gets the regular positions. Petitioner Michael Dwayne Sapp drove a school bus in Atlanta before he started as a substitute driver for respondent in 1984. In Atlanta, he had received both a certificate for training as a school bus driver and, in 1981, a certificate in recognition of his service as a school bus driver. He still had to attend classes for two days and accompany a regular Escambia County school bus driver for a third, before being deemed eligible to work as a substitute bus driver for respondent. When he substituted several days in succession, petitioner was allowed to drive a school bus home, but he was informed of respondent's policy against any other personal use of the bus. He nevertheless "took it up to Cottage Hill." Hohaus Deposition, p. 13. One of the witnesses petitioner called at hearing testified that she had seen him pushing a grocery cart full of groceries across a parking lot in front of the Delchamps store on Mobile Highway toward a parked school bus. Whether petitioner's superiors learned of this at the time was not shown. After petitioner drove the school bus to the northern part of the County to spend the night because the power at his house was off, Mr. Hohaus, a route supervisor, told petitioner he would not be using his services any more. But petitioner complained, ultimately to Superintendent Holloway, who decided he should be given another chance. A route supervisor received "numerous complaints" of petitioner's speeding and "running red lights or stop signs." Id. at 14. Petitioner denied the accuracy of these complaints both at the time and at hearing. He has never received a traffic ticket while driving a school bus. On October 10, 1988, Mr. Sapp telephoned Mr. Hohaus at about half past six, after the time he should have begun picking children up to take to school. He said he had been trying to start the bus without success. Mr. Hohaus arranged for another substitute driver to take the route and dispatched Gary Locke, a mechanic, to petitioner's house. But, when the mechanic arrived at the Sapp residence, the school bus was not there, and the second substitute found no children at the first stop to which Mr. Hohaus had sent her. Mr. Hohaus then raised petitioner on a two-way radio and learned he was making the run after all. He asked Mr. Sapp to come see him once the children had been delivered to school. Mr. Sapp did not come in person but he did telephone. Eventually, he admitted that he had overslept, and had experienced no mechanical difficulty with the school bus that morning. (At hearing, petitioner attributed his oversleeping to medicine he had taken.) Mr. Hohaus told him for the second time that he would not need his services again. When petitioner appeared at the administration building to complain to a superior, he called Mr. Hohaus a son of a bitch, and Mr. Hohaus threatened to stuff him in a trash can. In August of 1989, Mr. Sapp applied to Robert Sites, who had just assumed the directorship of transportation, for a school bus driver's job. No regular positions were open at that time, but Mr. Sites inquired of all three route supervisors as to whether they would use his services as a substitute. Because each said no, he did not rehire petitioner as a substitute school bus driver.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 19th day of June, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1992. COPIES FURNISHED: Pete Payton, Superintendent Escambia County School Board P.O. Box 1470 Pensacola, FL 32597 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Michael Sapp 5342 Deerwood Road Pensacola, FL 32526 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 W. Cervantes Street Pensacola, FL 32501
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
The Issue The issue addressed in this proceeding is whether Respondents committed any acts which would subject them to termination of employment or disciplinary action.
Findings Of Fact Bettye Gates has been employed by the Bay County School Board since 1983. Ms. Gates was employed as a bus driver from 1983 through 1984. In 1985, Ms. Gates was promoted to District Route Specialist and worked in the Transportation Department's office. In that capacity, She supervised the bus drivers. However, she did not have any responsibility for travel vouchers and their reimbursement. In 1987, because Ms. Gates did not like her new job, she elected to transfer back to being a bus driver. Ms. Gates has maintained her position as a bus driver through the present time. Since 1983, Ms. Gates has had only two or three overnight field trips in her capacity as a bus driver. None of these trips were similar enough to the overnight field trip in this case to permit any inferences as to Ms. Gates' knowledge or intent in regards to her alleged attempts to improperly seek reimbursement for travel expenses she did not incur. Shelby Finch has been employed by the Bay County School Board since 1987. She was employed as a bus driver. Ms. Finch has maintained that position through the present time. She had not participated in any overnight field trips prior to the overnight field trip involved in this case. She, therefore, had no experience regarding reimbursement procedures for such trips. /1 Ms. Gates' employment extended back to a time period during which Malcolm Murphy was the Supervisor of Transportation and supervised the bus drivers. During that time period, several bus drivers slept in their buses on overnight field trips. Mr. Murphy did not like bus drivers sleeping on their buses and instituted a policy that bus drivers had to stay in motel rooms or with friends when on overnight trips. In order to insure compliance with his policy, Mr. Murphy required that bus drivers bring back a receipt or some type of evidence that they had in fact stayed in a motel room and the time period during which they had stayed. This new policy and its requirements were communicated to all the bus drivers in a meeting held in early 1980. Since the time of Mr. Murphy's policy, other administrators have come and gone in the Bay County School System. The current supervisor is Leonard Conway. Mr. Conway never instituted a policy similar to Mr. Murphy's. He was never even aware of such a policy. More importantly, however, for purposes of examining the intent of Respondents, Mr. Murphy's policy was never rescinded during any of the later administrations, including Mr. Conway's administration. As far as the bus drivers were concerned and these particular Respondents were concerned, Mr. Murphy's policy was still in full force and effect. The Bay County School Board maintains a system of employee reimbursement for expenses incurred by an employee on behalf of the school system. There are two types of reimbursement plans which can be requested. The two plans are known as per diem reimbursement and expenses reimbursements. Per diem reimbursement reimburses the employee at a flat per day rate. The rate varies according to the amount of time the employee is away from his or her base of employment. Expenses reimbursement reimburses the employee for the actual expenses incurred while away from his or her base of employment. Per diem reimbursement does not require receipts to be submitted to obtain the reimbursement. 2 Expenses reimbursement does generally require receipts to be submitted for reimbursement. The reimbursement plan which nets the employee the most money is the one which the School Board follows for payment of the employee. In order to claim reimbursement for travel expenses, each bus driver, prior to going on an out of town field trip, fills out a Temporary Duty Assignment (TDY) form. Each driver fills out only a portion of the TDY form. The portion the driver completes includes a decision as to whether the driver intends to claim reimbursement for actual expenses or per diem expenses. When the driver returns from the out of town trip, the driver fills out a travel reimbursement voucher. Again the driver only fills out a portion of the reimbursement voucher. In essence, the driver fills in the dates, times and destination of travel and signs the form essentially in blank. These forms are physically located in the hallway outside the Transportation office. The directions for filling out these forms are also located in this hallway. However, because there is a general belief in the Transpotation Department's office that the bus drivers are incapable of understanding the expense forms or the travel policies, the Transportation Department has essentially remove the bus drivers from direct responsibility for properly filling out these travel forms and has placed that responsibility in an overworked confidential secretary named Amber Bullard. If the driver brings in receipts then Ms. Bullard will determine the best method of reimbursement for the bus driver, regardless of whether the bus driver has indicated a method of reimbursement on the TDY form. In fact, if the driver has indicated a certain method of reimbursement on the TDY form and Ms. Bullard determines that the driver would receive more money under the other method of reimbursement she will change the drivers TDY form to request the method she believes is more appropriate and submit the altered paperwork to the finance office for payment to the driver. Ms. Bullard makes the decision to alter the driver's forms without consultation with the driver. On April 25, 1990, Ms. Finch and Ms. Gates drove two buses to Orlando, Florida for a Latin Club field trip. The trip lasted from April 25, to April 28, 1990. Prior to leaving on the field trip, Ms. Finch and Ms. Gates filled out Temporary Duty Assignment forms requesting reimbursement for overnight expenses. The portion of the form they filled out gave the date and time that they would be gone, the number of nights they expected to be out and the type of reimbursement they were requesting. Both Respondents requested per diem reimbursement. They did not request reimbursement for actual expenses. Also, prior to the field trip, another driver warned Ms. Finch to be careful because the administration would be watching Ms. Gates. Ms. Finch informed Ms. Gates about the warning and Ms. Gates told Ms. Finch that she had felt the administration had been watching her closely ever since she returned to being a bus driver after being Route Supervisor. The two women determined to be sure that all of their paperwork was accurate regarding the field trip, including compliance with Mr. Murphy's policy. While in Orlando, Ms. Hazard, the teacher in charge of the field trip, allowed the bus drivers to lodge in the teachers rooms during the field trip. Ms. Gates stayed with Ms. Hazard and Ms. Finch stayed with Ms. Marks. Ms. Gates attempted to get a receipt from the hotel in order to comply with Mr. Murphy's rule. The hotel changed the name on the room from Ms. Hazard to Ms. Gates. The evidence did not disclose whether Ms. Gates requested the name change or whether the hotel took it upon itself to change the name given Ms. Gates' request for a receipt. Ms. Hazard discovered the name change and had the hotel change the name back. Ms. Hazard informed Ms. Gates of her action. Ms. Gates then told Ms. Hazard about Mr. Murphy's policy and requested that Ms. Hazard obtain a receipt for her. Ms. Hazard asked the hotel desk clerk to prepare a statement showing that Ms. Gates had stayed in the room. The hotel prepared a receipt with Ms. Gates' name on it but with no room charges on it. The second receipt only reflected one nights stay. Although Ms. Hazard had no authority to determine the sufficiency of the second receipt, Ms. Hazard believed this document to be sufficient and delivered it to Ms. Gates. Ms. Gates believed she needed a document which showed she had stayed in the room for the three nights she was in Orlando and resolved to obtain the type of receipt she believed she needed herself. The same evening, Ms. Gates again approached the hotel's desk clerk and discovered that a receipt for all three nights could not be generated by the hotel until the final bills were posted. She was told she could pick up such a receipt the next morning when all the receipts would be placed on a table for pickup. At the conclusion of the field trip, Ms. Gates picked up the both her receipt and Ms. Finch's receipt from the table set up by the hotel. They were in envelopes and she did not immediately ascertain the information that was on them. Ms. Gates took Ms. Finch's envelope and delivered it to her at her bus. Ms. Finch never reviewed the receipt for accuracy but accepted it from Ms. Gates believing it was what she needed to comply with Mr. Murphy's policy. The receipts reflected the Respondents' names, the hotel rooms in which they stayed and the number of nights they had stayed in the hotel rooms. The receipt also reflected the charges for the room in which the Respondents stayed. The evidence was clear that Ms. Finch did not have any input into obtaining the receipts nor into the information that was placed on the receipts. Again the evidence did not disclose whether Ms. Gates told the hotel to prepare room receipts with room charges on them or whether the hotel placed such information on the receipts through its own volition. Without such crucial evidence it is impossible to determine whether Respondents had a fraudulent intent in obtaining these receipts. Certainly, no such intent was demonstrated in regards to Ms. Finch since she never attempted to obtain any of these receipts from the hotel but left it up to the more senior Ms. Gates to obtain the proper documentation for her. Upon their return, the Respondents filled out a reimbursement voucher. Each of them filled out the left side of the form indicating the dates of travel, places of travel and times of travel. They then signed these forms leaving the remainder of the forms blank. Along with these forms both Respondents submitted the receipt for their room along with other miscellaneous receipts. Ms. Bullard decided, without informing the Respondents, that they should be reimbursed under the expenses reimbursement method. She marked out both Respondents requests for reimbursement under the per diem method and substituted her judgment that they be reimbursed under the expenses method. Ms. Bullard took this course of action because she assumed that because Respondents had turned in their hotel receipts, they were requesting reimbursement for the same. The evidence regarding the precise course of events and the precise conversations held between Ms. Bullard and Respondents is in conflict. This conflict is most likely due to the relative parties point of view and ability to remember portions of these events which were more important to that individual, as well as, that protagonists interpretation of what someone else meant during some conversation. Suffice it to say, that neither version or a combination thereof demonstrates with any probability that Respondents intended to bilk some money out of the School Board. All of the evidence was highly equivocal. Therefore, the Petitioner has failed to demonstrate that Respondents are guilty of any conduct which would subject them to discipline or termination from employment. The Respondents should be reinstated with backpay.
Recommendation It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondents with backpay. DONE and ORDERED this 10th day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1991.
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011.
The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
