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
The Issue Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.
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: The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state- registered elevator company that specializes in installing elevators and wheelchair lifts. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit. When he first spoke with Mrs. Tobin two years ago, Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative. Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure. A short time after she gathered these responses, Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I. Mr. Carron also attended the meeting and gave Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements." Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides." Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at Burgundy I. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred." A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7 Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project." Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements: Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners. SUMMARY OF THE EVIDENCE Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.
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 Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act. DONE AND ENTERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of November, 1997.
The Issue The issue is whether First Transit, Inc. (“Escambia County Area Transit” or “ECAT”)1/ committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by subjecting her to disparate treatment and/or by retaliating against her.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On June 19, 2012, Ms. McMillan signed a document entitled “Escambia County Area Transit Cellular Phone Policy” which provided that: While on duty the use of a cellular phone or any other personal communication device is limited as follows: Employees on Company Business: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other company motor vehicle is prohibited. Push- to-talk communication devices issued by the Company may be used for work-related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable), request a 10-7, and exit the driver’s seat prior to using the cellular phone. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. The use of a cellular phone or other communications device by an employee while on the shop floor is prohibited, other than a Push-to-Talk communications device issued by the Company for work-related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. Roberta Millender has been a customer service representative at ECAT for the last four years. On July 28, 2015, at 12:25 p.m., Ms. Millender received a phone call from a customer who reported that the bus driver for Route 57 left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from the Route 57 bus in order to investigate the complaint. Because the videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.3/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. Via a letter dated August 3, 2015, Mike Crittenden, ECAT’s General Manager, notified Ms. McMillan that she was being terminated for violating Article 52 of the labor agreement. Mr. Crittenden’s letter deemed Ms. McMillan’s cell phone use to be a violation of section 1 which prohibited cell phone use while a transit vehicle is not secured. In addition, Mr. Crittenden’s letter noted that the termination was effective immediately. During the final hearing in this matter, Ms. McMillan was unable to present any evidence that any other similarly- situated bus drivers had not been terminated for using a cell phone while the buses they were driving were unsecured. Mr. Crittenden testified that 4 drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.4/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees, none of whom were aware of any bus driver being retained after violating the cell phone policy. The greater weight of the evidence demonstrates that Ms. McMillan was not discharged because of her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31th day of May, 2017.
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 issue is whether Respondent is guilty of unlawful discrimination in employment, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner in its transit department from 1993 through July 11, 2003. At all times, Respondent worked as a bus driver. In 2002, Respondent suspended Petitioner for his failure to make announcements to the passengers concerning the Americans with Disabilities Act (ADA). In 2002, Petitioner again failed to make the required ADA announcements to the passengers and engaged in a confrontation with a wheelchair- bound passenger as to the appropriate place for the bus to stop and discharge the passenger. On April 29, 2003, the director of the transit department notified Respondent that he was dismissed from his job as a bus driver due to the incidents in late 2002. Petitioner appealed the termination and attended a hearing in June 2003. At the hearing, Petitioner and Respondent agreed to settle the dispute by Respondent's converting the termination to a 60-day suspension without pay and reinstating Petitioner, at the end of 60 days, to his former bus driver position. The agreement also provided that Respondent would terminate Petitioner for any future violations of Respondent's rules. The agreement required Petitioner to return to work on June 30, 2003. Petitioner did not return to work on June 30 or at anytime through July 11, 2003. On July 11, 2003, the director of the transit department issued a letter informing Petitioner that he was terminated for failing to return to work, as required, on June 30, 2003, or at any subsequent time through the date of the letter. At the hearing, it was apparent that Petitioner had understood that he was to report back to work on June 30, 2003, and chose not to do so. Petitioner testified that his reason for failing to return to work was somehow related to discrimination against him by Respondent for wearing religious head garb. However, on cross-examination, Petitioner admitted that he had worn this religious article, without objection, since the resolution of a dispute about it on August 6, 2001. In fact, Petitioner failed to report back to work for reasons having nothing to do with discrimination, and Respondent terminated him for this failure, not for any reason involving discrimination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Zegory Kalouska Post Office Box 601012 North Miami Beach, Florida 33160 Eric A. Rodriguez Miami-Dade County Attorney Office 111 Northwest 1st Street, Suite 2810 Metro Dade Center Miami, Florida 33128
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue Does Petitioner, Seminole County School Board (Board), have just cause to terminate the employment of Respondent, Danny Jenkins, for being absent without leave and for failing to follow proper procedures for reporting absences?
Findings Of Fact The Board operates the public schools in Seminole County, Florida. It is responsible for hiring, terminating, and overseeing all employees of the school district. The Board has employed Mr. Jenkins as a bus driver in the transportation services division of the school district since 2006. Their employment relationship is subject to the collective bargaining provisions between the bus drivers' union, Seminole County School Bus Drivers' Association, Inc., and the Board, as reflected in the Collective Bargaining Agreement (Agreement), dated July 1, 2013, through June 30, 2016, and the Board's Transportation Services School Bus Operations Handbook (Handbook), dated July 2014. Mr. Jenkins had regular employment status as established by Article IX, Section 3 of the Agreement. Article XXII, Section 14 of the Agreement requires each bus driver to call in to report an absence in advance of the driver's regular starting time. The "Absentee Procedures" on page 50 of the Handbook require the same procedures. An employee is considered absent without leave (AWOL) for each day the employee is absent from work without reporting the absence using the process agreed to in the Agreement and established by the Handbook. Each day that an employee is AWOL is a separate offense for disciplinary purposes. The Agreement provides for a "progressive step process" of discipline for AWOL employees. The first offense is a reprimand with a one-day suspension. The second is a five-day suspension. The third is a recommendation for termination. The Handbook provisions for AWOL employees are similar to those of the Agreement. Employees who fail to notify dispatch within an hour past their report time are considered AWOL. The first AWOL incident results in a one-day suspension without pay. The second offense causes a five-day suspension. The third offense is cause for termination. Regular employment class employees may be suspended without pay or discharged for reasons including, but not limited to: violation of Board policy; violation of work rules; insubordination; improper use of sick leave; failure to perform assigned duties; and other infractions as set forth by the superintendent. Just cause is required. On August 11, 2014, the first day of the 2014-2015 school year, Mr. Jenkins did not show up for work. He did notify dispatch that he was not coming in. The Board took no disciplinary action for Mr. Jenkins' absence that day. On August 12, 2014, Mr. Jenkins did not report for work and did not call dispatch to report his absence from work. Ms. Murphy, assistant director of Transportation Services, sent Mr. Jenkins a letter notifying him that due to being AWOL on August 12, 2014, she recommended that he be suspended for one day pursuant to the Agreement. On Wednesday, August 13, 2014, Mr. Jenkins did not report for work. He did not call dispatch as the Handbook required. But he did call the School Board's front desk. The Board did not take disciplinary action for that absence. On Thursday, August 14, 2014, Mr. Jenkins did not report for work. He did not call dispatch or make any other form of contact with the Board concerning his failure to report for work on that day. On Friday, August 15, 2014, Mr. Jenkins did not report for work. He did not call dispatch. At 12:08 a.m. that day, he sent a fax addressed to Ms. Murphy saying that he would not be able to come into work. The fax also contained a narrative disputing previous recommendations for discipline, discussing alleged poisoning from fumes on the bus, and giving reasons why he had not taken a physical to obtain a current medical certification as required. On Monday, August 18, 2015, Mr. Jenkins did not report for work. He did not call dispatch or otherwise contact the Board about his failure to report for work. Mr. McKenzie sent Mr. Jenkins a letter on August 18, 2014, stating that Mr. Jenkins must contact him by Thursday, August 21, 2014, to discuss his employment status. Mr. McKenzie also called Mr. Jenkins' home and cell telephone number in order to "help him as best as I can to get him to come to work." Mr. Jenkins did not respond. On Tuesday, August 19, 2014, Mr. Jenkins did not report to work. He did not call dispatch. He sent Ms. Murphy a fax at 9:09 p.m., on August 18, 2014, stating that he would not be able to report for work on August 19, 2014. The fax also claimed the school was not acknowledging his telephone calls. Mr. McKenzie called Mr. Jenkins four times on August 19, 2014, to discuss his absence from work and other work-related issues. Mr. Jenkins did not report to work on Wednesday, August 20, 2015. He did not call dispatch or otherwise communicate with his supervisors about his failure to report for work. Mr. McKenzie called Mr. Jenkins four times on that day to discuss his absence from work. Mr. McKenzie also e-mailed Mr. Jenkins. On Thursday, August 21, 2015, Mr. Jenkins did not report to work. He did not call dispatch an hour before his scheduled runs. He called Mr. McKenzie via telephone later that afternoon after receiving Mr. McKenzie's August 18, 2014, letter. Mr. McKenzie offered to meet with Mr. Jenkins the following day. Mr. Jenkins said he would attend. On Friday, August 22, 2014, Mr. Jenkins met with Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves. The parties discussed, among other things, the fact that Mr. Jenkins was not in compliance with the physical, medical card, training, and related commercial driver license requirements necessary for him to operate a bus. Mr. Lewis also confirmed each of Mr. Jenkins' absences and AWOL status for the dates in August where he did not report for work and did not call dispatch. This is a party admission admissible under the hearsay exception created by section 90.803(18)(a), Florida Statutes. The vast majority of the Board's evidence was hearsay, not subject to a hearsay exception. But Mr. Jenkins' admission to Mr. Lewis, coupled with the fact that Mr. Jenkins' testimony at the hearing basically did not dispute the charges, so much as offer reasons why he could not come to work and reciting many of his concerns, including student verbal and physical abuse on the bus, bullying of his children, and poisoning of some sort related to his employment. To the extent that the testimony of Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins' testimony, the undersigned found Mr. Lewis and Mr. McKenzie more credible. The outcome of the meeting was that Mr. Jenkins was expected to report for work on Monday, August 25, 2014. Immediately after the meeting, Mr. Lewis met privately with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could either resign or come in the following Monday and do everything he needed to do to retain his employment. Mr. Jenkins did not report for work on August 25, 2014. He did not contact dispatch or otherwise communicate with his supervisors or the Board. Mr. Lewis called Mr. Jenkins on Monday after he failed to report for work and offered to pick him up and bring him to work. Mr. Jenkins declined that offer. After Mr. Jenkins did not report for work on August 25, 2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins notifying him of a second AWOL offense and Mr. Lewis's recommendation that Mr. Jenkins be terminated from employment. On Tuesday, August 26, 2014, Mr. Jenkins did not report for work. He did not contact dispatch or otherwise communicate with his supervisors or the Board. That same day, the superintendent sent Mr. Jenkins a letter noting that Mr. Jenkins had been AWOL on August 14, 20, 21, 25 and 26, 2014. The letter also noted that Mr. Jenkins failed to follow the required notice procedures for his absences on August 15, 18, and 19, 2014. The superintendent's letter notified Mr. Jenkins that he was recommending that the Board suspend Mr. Jenkins without pay at the September 9, 2014, Board meeting and that the superintendent would recommend Mr. Jenkins' termination at the October 14, 2014, board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Seminole County School Board, enter a final order finding that there is just cause to terminate Respondent, Danny Jenkins', employment and dismissing him from his position as a regular employee bus driver with the Seminole County School District. DONE AND ENTERED this 13th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of April, 2015.
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, 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 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
