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
The Issue The issue is whether Amalgamated Transit Union Local 1395 (“the Union”) committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by failing to provide her with the same level of advocacy provided to Union members and non-African-Americans.
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 agreement1/ 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 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. On July 28, 2015, at 12:25 p.m., Roberta Millender, a customer service representative at ECAT, received a phone call from a customer who reported that the bus driver for Route 57 had 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 that particular bus in order to investigate the complaint. Because the bus 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, 2015.2/ 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. ECAT terminated Ms. McMillan on August 3, 2015, for violating section 1 of Article 52 of the labor agreement. Article 5 of the labor agreement sets forth the procedures that ECAT and the Union follow in order to resolve labor issues. Pursuant to Section 2 of Article 5, Michael Lowery, the President of the Union, filed an “Official Grievance Form” (“the McMillan grievance”) with Mike Crittenden, ECAT’s General Manager. Ms. McMillan had reservations about Mr. Lowery handling her grievance. Because she had not joined a recent strike and was not a Union member, Ms. McMillan feared that Mr. Lowery would not use his best efforts on her behalf. However, Mr. Lowery handles the majority of the grievances, and he handles all of the grievances involving termination.3/ The McMillan grievance stated the following: The employee does not dispute the offered video and will stipulate that she used her personal cellphone while operating a transit bus while not secure. This professional bus operator understood the Company policy but did not clearly understand the proper procedure to request assistance to disembark her motor coach while under tremendous physical bodily stress to relieve herself of a bodily function. Operator McMillan understood the procedure to request a 10-7 (Operator off Motor Coach) but was concerned with her bodily stress and finding a safe, clean rest room which was continuing to cause significant additional stress. The Company has clearly FAILED to work at providing known secure, clean, safe facilities for professional bus operators to utilize while operating ECAT buses. The Union has brought this topic forward to Management numerous times and no action has been taken to formulate the needs of the professional bus operators on many bus routes including the bus route that Operator McMillan was driving on the day in question. Operator McMillan was dealing with other related stress on that particular run. The military base was under alert and traffic was extremely backed up. She was dealing with one Dispatcher Supervisor and had reached agreement with him on how to proceed on the bus route. But when another Dispatch Supervisor came on duty it was clear that neither of those Supervisors had shared information on dealing with Route 57 with the military heighten[ed] alert. The new Dispatch was difficult to communicate with about established procedures set earlier with another Dispatcher. This did not help the already adverse or very demanding circumstance. Mr. Lowery concluded the grievance by asking that ECAT rescind its termination of Ms. McMillan, pay her lost wages and benefits, and remove any discipline from her file. Ordinarily, the first step in resolving a grievance involves settlement discussions between ECAT officials and the Union. However, because Ms. McMillan’s grievance involved a termination, it went directly to Mr. Crittenden for his consideration. Via an e-mail dated August 4, 2015, Mr. Crittenden notified Mr. Lowery that he was “denying this grievance and upholding the termination of the subject employee.” Because Ms. McMillan’s grievance was denied, the next step in the process called for the Union to decide whether it wanted to submit the grievance to arbitration.4/ As part of this next step, Mr. Crittenden prepared a draft version of a “Last Chance Agreement” for the Union to review. A Last Chance Agreement is an agreement between an employee, ECAT, and the Union. The draft Last Chance Agreement prepared by Mr. Crittenden contained the following provisions: The employee violated the Company’s cell phone [policy] which is a serious safety infraction that warrants immediate termination. In lieu of terminating her employment, the Employee’s discipline record will reflect this infraction as suspended without pay from August 3, 2015 to August 14, 2015 and returning to work on August 17, 2015 upon acceptance of this agreement, and placed on a twelve month probation/Last Chance Agreement. The employee will retain her rate of pay and security. The employee understands that in the event she violates company policy by being charged with any infraction that warrants immediate termination, her employment will be terminated without any further consideration. This agreement will be in effect for a period of twelve (12) months from the date of signature. The Employee attests that her signature below was in no way coerced by any party or by the representative of any party. By entering into this agreement, the employee acknowledges that she has read and considered each of the provisions of this Agreement and that she voluntarily enters into this Agreement with full knowledge of the consequences. This Agreement is made on a one-time only, non-precedent basis that shall not be used or referred to in any future discipline or termination case or during any grievance/arbitration hearings between the parties. Mr. Lowery presented the proposed Last Chance Agreement to the Union’s legal counsel, and the Union had an issue with the seventh provision’s reference to “non-precedent basis.” Mr. Lowery attempted to reach an agreement with Mr. Crittenden for amending that provision, but his efforts were unsuccessful. Mr. Crittenden would not consent to the removal of that language. Ms. McMillan was disturbed by the fact that she had no input into the Last Chance Agreement proposed by Mr. Crittenden and that it was not presented to her for approval. However, after the Union decided not to accept Mr. Crittenden’s proposal, Ms. McMillan’s approval or disapproval became irrelevant. As noted above, a Last Chance Agreement involves three consenting parties: the employee, ECAT, and the Union. Thus, even if Ms. McMillan had been satisfied with the Last Chance Agreement proposed by Mr. Crittenden, it would not go into effect without the Union’s approval. In order for the Union’s Executive Board to vote on whether to refer Ms. McMillan’s case to arbitration, Mr. Lowery put Ms. McMillan’s grievance on the agenda of the Executive Board’s August 23, 2015, meeting. The five members of the Executive Board who were present and eligible to vote unanimously recommended against pursuing arbitration for Ms. McMillan’s grievance because her case lacked merit. As for why Ms. McMillan’s case lacked merit, Mr. Lowery testified that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Executive Board’s recommendation was considered by the full Union membership later that day, and the Union voted to accept the Executive Board’s recommendation. When asked to explain why the Union elected not to arbitrate Ms. McMillan’s grievance, Mr. Lowery testified that Simply it’s the severity of the policy, which was it’s in the labor agreement. It was negotiated between the Union and the company. And because they had a solid video, we would not be able to demonstrate a way to achieve a victory in that arbitration case. And, potentially, because it’s in the Labor Agreement, that would be used against us in an arbitration because we negotiated it. We negotiated the policy. When subsequently asked a very similar question, Mr. Lowery reiterated that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Union has not arbitrated any grievances in which a driver has been terminated for using a cell phone while a bus was not secured. Including Ms. McMillan, four 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.5/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees who were unaware of any bus driver being retained after violating the cell phone policy. Mr. Lowery represents every grievance to the best of his ability, and he represented Ms. McMillan’s grievance to the best of his ability. The greater weight of the evidence demonstrates that he handled Ms. McMillan’s grievance no differently than any other grievance.6/ Mr. Lowery did not consider Ms. McMillan’s race or religion in the course of representing her.7/ The Union did not discriminate against Ms. McMillan based on her race or non-union status. In addition, to whatever extent that Ms. McMillan is alleging that she was discriminated against on any other grounds, there is no evidence to support such allegations.
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 31st 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 31st day of May, 2017.
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2007.
The Issue The issue in this case is whether the wheelchair transport driver certifications of each of the Respondents should be revoked.
Findings Of Fact The Director is responsible for, inter alia, providing wheelchair transport driver certifications in Pinellas County. Gammage, Miller, and Stewart were each certified by the Director to be a wheelchair transport driver. Each of the Respondents worked for Wheelchair Transport Service, Inc. (the "Employer"). The process by which drivers obtain a certification from the Director is as follows: The Employer hires an individual to be a driver. It is the responsibility of the Employer to make sure each driver applicant has been fingerprinted. The Employer must also forward each driver's application to the Florida Department of Law Enforcement ("FDLE") for a criminal background check. When the background check is complete, the Employer must certify to the Director by way of an affidavit that the applicant for certification: has not been convicted of a felony; (2) has not been convicted of a misdemeanor directly related to his or her employment; and (3) has not pled nolo contendere to any charge of felony. The Employer must also affirm that it has attempted to contact the applicant's prior employers, that the applicant is of good moral character, and that the Employer has contacted three non-related individuals to attest to the applicant's morality. Once this process is complete, the Employer provides the Director with the driver's application along with an "Affidavit As To Background" for the driver. Upon receipt of this information, the Director would issue a certification to the applicant. The Director does not normally do an independent background check on the applicants. Rather, it relies upon the affidavit from the employing entity. In January 2006, the Director received a copy of an anonymous letter that had been sent to a local hospital which provided services to a large number of Veteran's Administration patients. The letter alleged improprieties by the Employer, specifically that it was hiring unqualified drivers. The qualifications of drivers are important to the Director because drivers are transporting the most vulnerable members of society, i.e., the sick, weak, infirm, and elderly. Based on the allegations in the anonymous letter, the Director undertook an independent investigation. Despite its limited financial resources, the Director performed a background check on all drivers for the Employer. The investigation found that seven drivers, including the three Respondents, had disqualifying criminal histories. For Gammage, the Employer had provided an affidavit to the Director stating that Gammage met all the criteria for certification and had no disqualifying criminal background. The affidavit was signed by Gammage and by a representative of the Employer. The affidavit was notarized, but it is unclear whose signature was being affirmed by the notary. Gammage, despite the representations in the affidavit, did have a disqualifying criminal history. He had two felonies, a burglary in 1994 and a sale of cocaine conviction in 1997. He served time in jail for at least one of the felonies. Nonetheless, the Director relied upon the affidavit from the Employer and issued Gammage a certification. After receiving his certification, Gammage worked for the Employer driving wheelchair transport vehicles for approximately seven years. He has been recertified every two years and has a clean employment record. The affidavit for Miller also affirmed that a background check had been done, that Miller had no felonies or other disqualifying criminal history, and that he was of good moral character. Miller's affidavit is not signed by the Employer, but "Wheelchair Transport Service, Inc." is stamped or typed on the signature line. The affidavit is notarized, presumably affirming Miller's signature since it is the only actual signature on the affidavit. Miller, too, actually had felonies in his background. He was found guilty of dealing in stolen property in 1994. Another felony charge, cruelty to a child, had been reduced to a misdemeanor, but it may also be a disqualifying event due to the nature of the crime. Miller's application and affidavit were provided to the Director, and a certification was duly issued. Stewart also applied for certification through the Employer. Stewart's affidavit affirmed his qualifications to be a wheelchair transport driver, i.e., the absence of a disqualifying criminal history and that he was of good moral character. The affidavit introduced into evidence was not signed or stamped by the Employer, nor was it notarized. According to Stewart, this was one of several affidavits he had done for his Employer. However, Stewart had a disqualifying criminal history as well. His record included battery on a police officer in 1991 and robbery with a deadly weapon in 1992. Despite this fact, the Director issued a certification for Stewart.1 All of the Respondents testified that they had told the Employer about their criminal backgrounds, but the Employer indicated to them that it didn't matter. All of the Respondents believed that the Employer was able to "take care of the problem" so that they could become certified. None of the three Respondents directly told the Director that they had no criminal history. In fact, under the certification process, it was solely the Employer's duty to advise the Director. It is clear the Employer--not the Respondents-- intentionally misled the Director concerning the criminal history of the three Respondents. Nonetheless, the Director continues to use the Employer to provide wheelchair transport services because "they have changed the way they do things." Apparently, the Employer now provides an FDLE background check along with the application and affidavit. Gammage, Miller, and Stewart have proven they are good employees. Each has a clean record with the Employer (Gammage for seven years or more), and each continues to work for the Employer outside Pinellas County. The medical director was kind in her praise of the three men, but firm in her stance that they were not eligible to have wheelchair transport driver certifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Pinellas County Emergency Medical Services, Office of the Medical Director, revoking the certifications of each Respondent. DONE AND ENTERED this 11th day of December, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of December, 2007.
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 Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' Joint Pre-Hearing Stipulation, the following findings of fact are made: Petitioner was born on March 31, 1936, in Trinidad- Tobago. He migrated to the United States in 1974. In or around May 1993, when he was 57 years old, Petitioner applied for a position as a school bus driver with Respondent and was subsequently hired. Respondent is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, and for otherwise providing public instruction and related services, including transportation services, to school-aged children in the county. Respondent provides transportation services through its Transportation Department. Jerry Klein has headed the Transportation Department (as its Administrative Director) since 1993. The Transportation Department operates eight transportation centers throughout the county. Assigned to these eight transportation centers are a total of approximately 1,530 school bus drivers, who range in age from 22 to 77, with most being over 40. The current job description for the position of school bus driver has been in effect since March 9, 1999. It provides that school bus drivers must meet the following "physical requirements" and "minimum qualifications requirements": PHYSICAL REQUIREMENTS This is light work which requires the following physical activities: sitting, standing, walking, climbing, twisting, reaching, grasping, talking, hearing and visual acuity. Heavy lifting, pushing, and pulling may occasionally be required. Work is performed indoors and outdoors and worker is subject to noise, heat, fumes and vibration. MINIMUM QUALIFICATIONS REQUIREMENTS Must hold a valid Commercial Driver's License, have a minimum of five (5) years licensed driving experience, and have an excellent driving record. Must be able to pass the examinations and tests required by the State of Florida to obtain a Class B Commercial Driver's License with a Passenger Transport Endorsement, without air brake restriction. Must have an acceptable background check. Must be able to pass a prescribed reflex test, physical examination, and drug test. Must be able to deal with stressful situations on a frequent basis. Must have completed eighth grade and have a demonstrated ability to read, write, and understand written instructions in English. High school diploma or GED preferred. Must be able to pass the Basic School Bus Training Course given by Miami-Dade County Public Schools Department of Transportation in accordance with Rule 6A- 3.0141 of the State of Florida Board of Education.[2] Good knowledge of county geography. In 1993, in response to "several media reports" that some of its school bus drivers "were driving with suspended licenses and [had] other types of problems with their driving record[s]," Respondent developed and reduced to writing criteria to be used to screen the driving records of applicants for school bus driver positions (Screening Criteria), criteria which, in all material respects, it still uses today. The document in which these Screening Criteria are set forth is entitled, "Screening of Driving Records for Prospective School Bus Drivers for M-DCPS and Private Company Drivers," and it reads, in pertinent part, as follows: * * * Each individual's transcript of Driver Record will be screened in accordance with the guidelines and criteria established by this document. The entire driving record will be checked for purposes of determining an individual's acceptability or unacceptability to drive a school bus for M-DCPS. The screening process will be conducted prior to employment for M-DCPS drivers and annually as part of the annual re-certification for all drivers operating under contract to M-DCPS. Points will be assigned for each entry on the Transcript of Driver Record in accordance with the Appendix attached to this document, and Paragraph 2 above. Individuals will not be approved to drive a school bus for M-DCPS if they have: More than three (3) district assigned points during the past year More than six (6) points during the past three (3) years More than nine (9) points during the past five (5) years or More than twenty five (25) district assigned points total, on the entire record. * * * 6. The Administrative Director, Department of Transportation, or his designee, may make exception to the guidelines above, as circumstances warrant. Drivers who are disqualified under the above guidelines may further appeal the decision to the Chief Business Officer. * * * APPENDIX DRIVING VIOLATION POINTS ASSESSED BY DISTRICT VIOLATION POINTS SPEEDING UP TO 14 MPH OVER POSTED SPEED LIMIT 3 15 MPH OR MORE, OVER POSTED SPEED LIMIT 4 IN A SCHOOL ZONE 3 DRIVING TOO FAST FOR CONDITIONS 3 * * * FAILING TO COMPLY WITH STOP SIGN 3 FAILING TO COMPLY WITH TRAFFIC INSTRUCTION/DEVICE 3 * * * IMPROPER TURNING 3 * * * SEAT BELT VIOLATION . . . . 1 CARELESS OR IMPROPER DRIVING 3 * * * 22. AT-FAULT ACCIDENT 2 * * * Note: The district assesses points under this plan for all entries, regardless of conviction status or state disposition. Although Mr. Klein, as the Transportation Department's Administrative Director, has had the authority to "make exception[s]" to these Screening Criteria, he has never done so. Petitioner worked as an hourly school bus driver from June 10, 1993, until January 1994, when he became a full-time school bus driver, a position he held for approximately seven and a half years.3 During his employment as a school bus driver with Respondent, Petitioner was involved in several vehicular accidents while on duty in his school bus. After one such accident, which occurred on August 9, 1999, Petitioner was suspended without pay by Respondent for failing to report the accident.4 The suspension began February 10, 2000, and ended March 13, 2000. Petitioner's most recent accident as a school bus driver occurred March 26, 2001. Because the accident was deemed to have been "preventable," Petitioner was directed to complete retraining before resuming his school bus driver duties. Petitioner began his retraining on May 16, 2001. He was unable to successfully complete the retraining, although given adequate time and a fair opportunity to do so. On June 5, 2001, after Petitioner had had eight days of retraining5 (one in the classroom and seven on the road), Richard Rothberg, a Coordinator II for Operations and Training with Respondent, advised Petitioner that he "wasn't meeting the qualifications" to remain a school bus driver and asked him if he "would be willing to accept a demotion to a bus aide position so that he could retain his employment with [Respondent]." Mr. Rothberg told Petitioner that if he rejected the offer of a demotion, Petitioner's "case would be referred to the OPS [Office of Professional Standards]" and "he could be terminated." Petitioner's age played no role whatsoever in Mr. Rothberg's decision to end Petitioner's retraining and give him the choice to resign from his position as a school bus driver and take a bus aide position or face the possible termination of his employment with Respondent. Petitioner opted to resign from his school bus driver position and accept a position as a bus aide rather than risk not having any job with Respondent. In his letter of resignation, Petitioner wrote that he was resigning because he had "fail[ed] driver retraining." Respondent accepted Petitioner's resignation and appointed him to a bus aide position, effective June 15, 2001, as Petitioner had requested in his letter of resignation, a position in which he has remained. In or around May 2004, Petitioner, through a union representative, John Nochi, contacted Mr. Rothberg's successor, Chris Dowda, to express Petitioner's interest in becoming a school bus driver again. Mr. Nochi, on Petitioner's behalf, asked Mr. Dowda "to check [Petitioner's] driving record to see if he would be qualified to be a school bus driver." On May 14, 2004, Mr. Dowda obtained a print out of Petitioner's driving record (as maintained by the Florida Department of Highway Safety and Motor Vehicles) and "screened it." Applying the Screening Criteria, Mr. Dowda determined, correctly, that Petitioner had accumulated a total of more than 25 district-assigned points over the period of his licensure and that he therefore was not qualified to be a school bus driver. Mr. Dowda thereafter telephoned Mr. Nochi and "told him what the results were" of the screening. Mr. Dowda had "numerous [follow-up telephone] conversations" with Mr. Nochi, who had "a lot of questions" concerning the Screening Criteria. During one of these telephone conversations, which took place sometime prior to the end of 2004, Mr. Dowda, in attempting to explain why the Screening Criteria were developed, posited the following: If there [are] bus driver[s] with a lot of citations on their record and they go out and they get into an accident and there are students injured on the bus and . . . the media gets a hold of their driving record we will see on the news, the media holding [it] up and say[ing], "Look who's driving for ou[r] district right now." Unbeknownst to Mr. Dowda, Petitioner was present in the same room as Mr. Nochi and listening on a speakerphone to what Mr. Dowda was saying to Mr. Nochi. Mr. Nochi also contacted Mr. Klein and requested him to "review the driving record of [Petitioner] and see whether it would be acceptable to bring [Petitioner] back as a school bus driver." After conducting the requested review and determining that Petitioner had "a terrible driving record with more than 25 points assessed based on a long history of driving infractions," Mr. Klein informed Mr. Nochi that he "was not prepared to bring [Petitioner] back as a school bus driver because [Petitioner] didn't meet the minimum requirements of the [S]creening [C]riteria to become a school bus driver," adding that these requirements were not "waive[d] . . . for anybody."6 Effective 2005, all school bus drivers in the state needed to have (as they still do today) a school bus driver endorsement on their commercial driver's license. That year (2005), Petitioner went to Northwestern High School to take a written test, administered by Respondent, to obtain such an endorsement, but was told that he was not eligible to, and therefore could not, take the test. Petitioner subsequently took the test at the Department of Highway Safety and Motor Vehicles driver's license office in Pembroke Pines and received a passing score. On August 23, 2005, he was issued a commercial driver's license with a school bus driver endorsement. Petitioner subsequently went to Mr. Klein and showed him the newly issued license. Mr. Klein responded to being shown the license by repeating what he had told Mr. Nochi concerning Petitioner's having "too many points on his driving record" to be qualified under the Screening Criteria to become a school bus driver with Respondent. Although he has made inquiries about the possibility of his regaining a school bus driver position with Respondent, Petitioner has not submitted an official application for such a position at any time following his demotion. Under the hiring system Respondent has developed, the filing of an application is a prerequisite to becoming a school bus driver. On March 27, 2006, following his meeting with Mr. Klein, Petitioner filed the employment discrimination charge against Respondent which is the subject of the instant proceeding. The "particulars" of the charge were described by Petitioner as follows: I believe that I was discriminated against because of my age, 69. Chris Dadow [sic] made a derogatory comment about look who's driving our school buses. I was instructed to go and get a new license, and I complied. Mr. Chris Dadow [sic] refused to give me the driving test so I [could] become a School Bus Driver. I was ultimately denied the opportunity for employment. In fact, it was Petitioner's driving record, not his age, that prompted Mr. Dowda, as well as Mr. Klein, to take the positions they did, following Petitioner's demotion, regarding his ineligibility to fill any vacant school bus driver position. The comment made by Mr. Dowda about which Petitioner complained in his charge had nothing to do with Petitioner's, or anyone else's, age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of the unlawful employment practice alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2007.
The Issue May Respondent's annual contract as non-instructional personnel (school bus driver) for the 1991-1992 school year be lawfully terminated by Petitioner School Board? Does Respondent retain any rights to renewal of his annual employment contract under the circumstances of this case?
Findings Of Fact Respondent, James Gravelding, was hired by Petitioner School Board in February 1989 as a school bus driver. With the exception of tenured teachers, all School Board employees, including those employees covered under the AFSCME collective bargaining agreement, are employed on an annual contract basis for a period not exceeding one year. At all times material, Respondent was an annual contract employee covered under the AFSCME agreement. Neither Respondent's employment contract nor the collective bargaining agreement provide any recourse for an employee who is not reappointed for a succeeding school year. The School Board has absolute discretion to reappoint or not reappoint any annual contract employee by a new annual contract at the end of each school year/contract term. Respondent was first employed on annual contract from February 1989 to June 1989. That annual contract and succeeding annual contracts covered the 1989-1990 school year, the 1990-1991 school year, and the 1991-1992 school year. During the course of his 1991-1992 annual contract, on November 7, 1991, Respondent was recommended for termination. The reason for the termination recommendation was Respondent's alleged violation of School Board policy with regard to the reporting of accidents. The charging document specifically stated: This action was necessitated by your failure to follow School Board Transportation Procedures in general, and Procedure (504.1)(6.B.) (Reporting of Accidents) in particular. Petitioner School Board's policy at (504.1) (6.B.) (Reporting of Accidents) is published in the "School Bus Drivers and Aides Handbook" and provides: 6.B. REPORTING OF ACCIDENTS: Drivers of school board vehicles will be required to report all accidents, violations, citations occurring in school board vehicles, suspensions, and/or revocations of driver license. Failure to report or inaccurate reporting shall be grounds for termination of employment. Accidents in a board owned vehicle must be reported at the time of the accident to the transportation department and in accordance with Florida Statute 316.065: "The driver of a vehicle involved in an accident resulting in injury to or death of any persons or property damage, shall immediately by the quickest means of communication, give notice of the accident to the local police department, if such accident occurs within a municipality; otherwise, to the office of the county sheriff of the nearest office or station of the Florida Highway Patrol. Respondent had received a copy of and was aware of the foregoing policy. On October 21, 1991, Respondent was driving his usual morning route in a substitute school bus, starting from the New Smyrna Beach school bus terminal. He left the terminal at 6:15 a.m. to pick up and deliver approximately 51 high school students. At approximately 6:45 a.m. he had all of the high school students loaded on the bus. At that time, he made a left- hand turn at the intersection of Indian River Boulevard and Route One, hitting a child who was chasing the bus by running in the inside turn lane. Either the child's foot or leg was injured at that time. It was not yet daylight, and Respondent did not see the child before or after the accident. Respondent felt no "bump" and was unaware that the accident had occurred. However, at that time, he was aware of a number of students standing in the back of the bus, looking out the window. These students only sat down after about ten minutes. No one immediately reported the accident to Respondent. At approximately 7:00 a.m., (fifteen minutes after the accident and five minutes after the children sat down) Respondent completed delivery of the high school students to New Smyrna Beach High School. As they exited the bus, one student reported to Respondent that he thought Respondent had run over a child's foot at the Indian River Boulevard and Route One intersection. Although Respondent's testimony wobbled on whether or not other students concurred with the spokesman who made the oral accident report to Respondent, the portion of Respondent's testimony to the effect that several students concurred in the oral report and his prior admission that several students concurred in the oral report are accepted here. Respondent testified that he had assumed that the students were kidding about the accident and told them so. He made this assumption despite the fact that he had never been lied to by the students involved and despite the fact that Respondent regarded the spokesman as a pretty good kid. Respondent further admitted there were no indicators of dishonesty in the students' report. He simply felt the accident report to him by a few students when he stopped at New Smyrna Beach High School approximately fifteen minutes after the accident occurred could not be true because if it had been true, the majority of the other students should have said something to him at the precise time of the accident. After the high school students exited his bus, Respondent drove behind the high school and tried to call his supervisor, Barbara Ivey, who was based in Daytona. He overheard someone else calling her and discovered she was out that day on leave. Standard procedure was for a substitute supervisor to be on duty. Respondent made no further attempts to report the alleged accident to that supervisor or to anyone else until much later, despite the fact that at all times material he had a working radio in his bus and knew that a dispatcher was on duty to take all radioed calls from drivers. Respondent also did not go into the high school to make a report to the high school principal or to contact School Board administrators by telephone. Respondent merely went on to complete his next two bus runs. Respondent completed his pickup and delivery of elementary students at approximately 7:50 a.m. He did not go into the elementary school to make a report to the elementary school principal or contact School Board administrators by telephone. At approximately 8:00 a.m., Respondent began his pickup of middle school children. Either while still on his middle school run or after completing his middle school run and while on his way back to the New Smyrna Beach school bus terminal, a dispatcher contacted Respondent by radio and asked him to telephone Mr. Crawford, Operations Administrator for the School Board's Transportation Department. No reason for this request was given by the dispatcher to Respondent, but in fact, Mr. Crawford had heard about the alleged accident from other sources and was trying to determine which bus was involved. Respondent did not report the alleged accident to the dispatcher when he received this notice to call Mr. Crawford. Respondent never went into the middle school to make an accident report to the principal or to contact School Board administrators by telephone. After he returned to the New Smyrna Beach school bus terminal, where there were no supervisors, Respondent consulted some older bus drivers and relied on their suggestion to make out an accident report form. When he could not find an accident report form, he made a very cursory explanation of events on a "suggested complaint form." Respondent's explanation on the "suggested complaint form" read only: student told me while unloading at High School that a kid was chasing Bus thru (sic) intersection of Indian River Blvd. and Route 1. I had no knowledge of this Respondent then placed the suggested complaint form in the interoffice mail at the New Smyrna Beach school bus terminal so that the form was received by his supervisor, Mrs. Ivey, in her Daytona office the next morning when she reported back to work. It is conceivable that the form arrived in her office the afternoon of the accident, but there is no clear proof to that effect. Respondent conceded that if one were certain that an accident had actually occurred, this method would not be the quickest way to report it. Only at that point, after putting the "suggested complaint form" in the interoffice mail, at approximately 9:00 a.m., did Respondent telephone Mr. Crawford from the New Smyrna Beach school bus terminal. The entire content of this conversation is in dispute, but it is abundantly clear that Respondent never volunteered any information to Mr. Crawford to the effect that he may have accidently hit a student with his bus, injuring the student. Respondent then went home. About 10:00 a.m., the dispatcher summoned Respondent from his home to the terminal where he met with various School Board administrators, including Mr. Crawford, and an officer of the Edgewater Police Department, who informed Respondent he had been involved in a hit and run. Only after this conversation did School Board administrators have a chance to interview the Respondent or go to the hospital to interview the injured child. The purpose of the School Board's accident report policy is to ensure the safety of school children and to permit immediate response and investigation of accidents by the School Board and by law enforcement for purposes of criminal/traffic prosecutions and defense of civil liability/damages actions. The radio dispatcher system was instituted during Respondent's period of employment so there would be communication with the buses all of the time that school buses were in service. Administrators are on call 24 hours a day in the event a serious problem occurs and can be "beeped" by the bus dispatcher. Respondent was aware at all times that his bus radio was available for just the type of emergency situation as occurred on October 21, 1991. During the preceding school year (the 1990-1991 school year), while Respondent was driving a school bus, one of his child passengers was injured and another child passenger reported the injury to Respondent. On that occasion, Respondent immediately pulled the bus over and reported the accident by radio to the dispatcher. When the School Board investigated the October 21, 1991 accident, no points were assessed against Respondent either by a point system adopted under School Board policy or under a point system adopted by the State of Florida. Respondent also was not prosecuted by the authorities for any traffic infractions or for injury to the child. The record is barren of any information as to whether or not any civil liability or damages were assessed against Respondent or the School Board as a result of this accident. Subsequent to the October 21, 1991 accident, Respondent was not processed through a Safety Committee review of a graduated point system established under (505)I, (505)II, (505)IV, (505)V, (505)VI and (504.1) (6.D. and F.) of the School Board "Support Services Policies." However, it was not shown that those policies superseded policy (504.1)(6.B.) (Reporting of Accidents) which specifically requires termination of employees for failures and inadequacies of accident reporting. There is no School Board policy that mandates graduated disciplinary actions in place of mandatory termination under (504.1) (6.B.) (Reporting of Accidents). The AFSCME collective bargaining agreement does not require graduated discipline before dismissal. School Board Policy (505)II utilizes language identical to the termination policy of (504.1) (6.B.). Moreover, the job of school bus driver is one in which driving constitutes an essential part of the job duties, and Policy (505)VI B. provides, in pertinent part: When an employee of the school district is terminated as a driver, the committee shall determine whether driving constitutes an essential part of the employee's job duties. If driving is an essential part of the job duties 'termination as a driver' shall result in termination of the employee's employment with the school district. . . Prior to the 1991-1992 contract period, Respondent had not had an exemplary employment history with the School Board, even though all concerned admitted he was a technically proficient school bus driver. He almost had not been recommended for re-employment for the 1991-1992 school year due to marginal performance. The problems experienced by the administration in connection with Respondent involved a history of actual violations and of numerous unproven complaints against him for unprofessional behavior, violation of smoking, drinking, and dress policies, and a prior minor preventable accident. Respondent had conferenced repeatedly with administrators and had always promised improved behavior and policy compliance. Prior to the date of accident herein, he had cleared up all his prior deficiency points through in-service training, recertification, and riding evaluations by safety officers. However, previously, on March 28, 1991, as a condition of rehiring him on annual contract for the 1991-1992 school year, the School Board had required him to do certain things and had specifically warned him in writing that any further proven policy violations of any type would result in termination. On November 7, 1991, after investigation of the October 21, 1991 incident was completed, Respondent was terminated from his 1991-1992 annual contract. See Finding of Fact 4, supra. Respondent was not offered an annual contract for the 1992-1993 school year.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board of Volusia County enter a Final Order ratifying the termination of Respondent. DONE and RECOMMENDED this 30th day of December, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-8269 The following constitute specific rulings, pursuant to Section 120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1-4. Except as unnecessary, subordinate, or cumulative, the proposals are covered in the preliminary material of the Recommended Order. 5-7. Accepted, except where unnecessary, subordinate, or cumulative. 8. Rejected as unnecessary. 9-10. Accepted, except where unnecessary, subordinate, or cumulative. 11. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation. 12-14. Accepted, except where unnecessary, subordinate, or cumulative. Inaccuracies corrected. Accepted, except where unnecessary, subordinate, or cumulative. Mere argumentation is also rejected. Accepted, except where unnecessary, subordinate, or cumulative. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation. Rejected as partially unproven and partially unnecessary, subordinate, or cumulative. Mere argumentation is also rejected. Accepted, except where unnecessary, subordinate, or cumulative. Respondent's PFOF Respondent did not submit any PFOF. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Thomas J. Pilacek, Esquire Maitland Green, Suite 110 601 South Lake Destiny Road Maitland, Florida 32751 Dr Joan Kowal, Superintendent Volusia County School Board P. O. Box 2118 Deland, Florida 32720
