The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Whether Respondent has committed a discriminatory employment practice against Petitioner by virtue of Petitioner's race. (In deference to Petitioner’s preference, his race will be referred-to as "Black.")
Findings Of Fact Lenore Kimmons is an adult "White" female. She was initially hired in July 2004, in Milton, Santa Rosa County, Florida, by Laidlaw Education Services (Laidlaw) as a school bus driver. At that time, Laidlaw had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 13, 14, and 15.) Effective April 1, 2005, Laidlaw and Amalgamated Transit Union (Local 1395/AFL-CIO), a mechanics’/maintenance union, entered into a collective bargaining agreement. (Stipulation 8.) This collective bargaining agreement (mechanics’ union contract) continued to be in effect when Petitioner was initially hired by Laidlaw, and by the use of executed “successor clauses,” continued in effect through the period of alleged discrimination. (Stipulation 8.) In the absence of any persuasive evidence to the contrary, the undersigned takes the “effective date” of the mechanics’ union contract to constitute its “ratification” date, as well. Petitioner is an adult “Black” male. Laidlaw initially hired him in Milton, Florida, on September 18, 2006, as a "B Mechanic.” At that time, Laidlaw still had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 1, 2, 3, and 7.) Petitioner was subject to the mechanics’ union contract, beginning with his September 18, 2006, date of hire and continuing past the alleged date of discrimination in 2008. Petitioner has had extensive heavy vehicle mechanical experience since 1989. He has worked for the United States Air Force and Department of Defense in Europe, and he supervised two vehicle maintenance shops prior to being hired by Laidlaw. He holds an Associate degree in automotive technology. Upon being hired in July 2004, Ms. Kimmons had begun work as a school bus driver (Stipulation 14) and shortly thereafter began to train as a mechanic. When she began training as a mechanic, she was reclassified into a “C Mechanic” position. As a “C Mechanic,” Ms. Kimmons ceased to be subject to the bus drivers’ union’s collective bargaining agreement and became subject to the mechanics’ union contract that eventually governed Petitioner. Sometime in 2006, Ms. Kimmons began to clerk in the office, but she continued to be classified as a “C Mechanic” and continued to be subject to the mechanics’ union contract. The mechanics’ union contract makes a distinction between employees hired before its ratification on April 1, 2005, such as Ms. Kimmons, and employees hired afterwards, such as Petitioner. It does not make a distinction based upon when one became a mechanic. The mechanics’ union contract provides, in pertinent part: MAINTENANCE DEPARTMENT JOB DESCRIPTIONS/CLASSIFICATIONS ARTICLE 28 Section 1 only applies to current employees who are already employed prior to the ratification of this labor agreement. * * * “A” Mechanic – required to have a minimum of 2 years experience Is defined as maintenance employee(s) who hold a Florida State Certification for School Bus Inspections. Required to work with limited supervision. The employee should have good skills and who is capable of repairing bus and white fleet including brake inspections and repair. The employee is capable of assisting and instructing lower classification mechanics. Must have and maintain a Florida CDL including “S” endorsement. “B” Mechanic – required to have a minimum of 3 years experience Is defined as maintenance employee(s) who assist higher classification mechanics. Work with supervision when required. Assists with inspection including all necessary repairs. Must have and maintain a Florida CDL including “S” endorsement. “C” Mechanic – entry level employee(s) Is defined as maintenance employee(s) who shuttle, clean, fuel, and as otherwise directed by management. Also responsible for minor cosmetics around shop such as crush oil filters, sweep areas in need, empty trash, dip tanks, and assist mechanics if necessary with full supervision by other Management personnel. Must have and maintain a Florida CDL including “S” endorsement. * * * Section 5 As of the ratification of this AGREEMENT the job descriptions for all new hires will be as follows: * * * “A” Mechanic Is defined as a maintenance employee who holds a minimum of three (3) ASE School Bus Certifications to include at least a) Air Brake, b) Steering and Suspensions, c) Diesel Engines and a Florida State Certification for School Bus Inspections. The employee is required to have a minimum of 3 years of “medium/heavy duty” technician experience (“B” Mechanic level). The employee must have good skills, is capable of diagnosing and repairing school buses and white fleet including brake inspections and repair in a reasonable length of time, in a professional manner and be able to work with limited supervision. The employee is also capable of assisting and instructing lower classification mechanics. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “B” Mechanic Is defined as a maintenance employee who holds a minimum of two (2) ASE School Bus Certifications to include at least a) Air Brake[1] and b) any of the other six (6) ASE School Bus Certifications. The employee is required to have a minimum of 2 years of “medium/heavy duty technician experience. The employee must also have good working skills, be able to assist with any inspection and all repairs as well as work with supervision when required. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “C” Mechanic Is defined as a maintenance employee who is capable of shuttling, cleaning fueling and as otherwise directed by Management. The employee is responsible for minor cosmetics around the shop such as crush oil filters, sweep areas in need, empty trash, dip tanks and assist mechanics if necessary with supervision by other maintenance personnel. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. (Emphasis supplied) At no time material has either Petitioner or Ms. Kimmons ever been a member of the mechanics’ union, but from its inception, the collective bargaining agreement between Laidlaw and the mechanics’ union applied to all mechanical employees, regardless of any employee’s union membership or lack of union membership. Petitioner has been outspoken in his refusal to join the mechanics’ union. Laidlaw was purchased by First Student, Inc., on October 1, 2007. (Stipulation 9.) Upon First Student, Inc.’s purchase of Laidlaw, Petitioner and Ms. Kimmons became employees of First Student, Inc. (Stipulation 10.) First Student, Inc., is the only Respondent in this cause. Upon First Student, Inc.’s purchase of Laidlaw, the mechanics’ union contract then in existence was carried over to bind First Student, Inc. At no time material has either Petitioner or Ms. Kimmons possessed an ASE School Bus Certification in Air Brake, an ASE School Bus Certification in Steering and Suspensions, or an ASE School Bus Certification in Diesel Engines. (Stipulations 4, 5, and 6.) Petitioner and Ms. Kimmons took the examination for the Florida State Certification for School Bus Inspections in February 2008. (Stipulations 11 and 12.) Petitioner could not demonstrate that Ms. Kimmons did not have the prerequisite number of years of experience or other qualifications to sit for the examination. Petitioner’s testimony, that in February 2008, and up to the date of hearing herein, he was Respondent's only “Black” mechanic in Mechanic Classes A, B, and C, was not refuted. In February 2008, Petitioner and Ms. Kimmons both passed the Florida State Certification for School Bus Inspections examination. At that time, both of them believed that successful completion of the examination would entitle them to be appointed as Class A mechanics, to a rise in pay grade, and to a $1.00/per hour raise in pay. (Stipulations 16, 17, and 18.) Lenore Kimmons requested an increase in pay and an increase in grade from “C Mechanic” to “B Mechanic” after she completed her Florida State Certification for School Bus Inspections. (Stipulation 16.) Petitioner requested an increase in pay and an increase in grade from “B Mechanic” to “A Mechanic,” after he completed his Florida State Certification for School Bus Inspections. (Stipulation 18.) In February 2008, Ron Kramer was the immediate supervisor of both Ms. Kimmons and Petitioner. He notified his superiors, up the line of command, that Ms. Kimmons and Petitioner had passed their February examination and that he, Mr. Kramer, believed that each of them was entitled to a rise in grade and to a commensurate raise in pay. (Stipulations 16, 17, and 18.) Approximately two months passed after the February 2008, examination, and Ms. Kimmons did not receive her requested rise in grade or raise in pay. Petitioner, likewise, did not receive any rise in grade or raise in pay. The union filed grievances on behalf of Petitioner and on behalf of Ms. Kimmons, resulting in an increase in pay and a rise to "B Mechanic" for Ms. Kimmons, but no raise and rise to “A Mechanic” for Petitioner. (Stipulations 17 and 20.) Pursuant to the union contract and Ms. Kimmons’ hire prior to its ratification, the raise/rise from Class C to Class B did not require any ASEs, but a raise/rise from Class B to Class A would have required Petitioner, who was hired after contract ratification, to have three specific ASEs that he did not possess. These ASEs were in Air Brake, Steering and Suspensions, and Diesel Engines. Ms. Kimmons had been hired in 2004, before the 2005, effective date of the collective bargaining contract for mechanics. Petitioner had been hired in 2006, after the 2005, effective date of the collective bargaining agreement for mechanics. Petitioner's rate of compensation was $12.99/hour, when his request for a raise in pay and rise in grade was denied. Had his grievance been successful, he would have received $1.00 more per each hour worked as an "A Mechanic." (Stipulation 19.) First Student, Inc., ceased all operations in Santa Rosa County, effective June 30, 2008. (Stipulation 21.) Petitioner has not been employed by First Student, Inc., since June 30, 2008. (Stipulation 22.) Most, if not all, of First Student, Inc.’s employees in Santa Rosa County, including Petitioner, were hired by Durham School Services in July 2008, at the same respective pay and grade at which they were employed by First Student, Inc., on June 30, 2008. (Stipulation 24.) Petitioner is currently employed by Durham School Services and has been so employed since July 1, 2008. (Stipulation 23.) Had Petitioner received his raise in pay and rise in grade in February 2008, under First Student, Inc., he would have continued to have received pay and all emoluments at that higher grade and rate after Durham School Services took over in July 2008.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2009.
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 April, 2017.
Findings Of Fact The School Board of Pasco County ("Respondent") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). At all times material to this case, the Respondent has had a nondiscrimination policy and a policy prohibiting sexual harassment in effect. The policies are provided to all employees, including the Petitioner, upon hiring, and are posted throughout the workplace. Denise E. Hoedt ("Petitioner") at all times material to this case was a bus driver employed by the Respondent. As of the date of the hearing, the Petitioner was on worker's compensation leave. There is no evidence that the worker's compensation leave is related to the allegations at issue in this case. When the Petitioner was initially employed by the Respondent she was assigned to a regular bus route and was stationed in the "Northwest Garage" unit of the Respondent's transportation system. After having been employed for a sufficient period of time, she was provided with a contractual right to choose her route. She chose to transport exceptional education (ESE) students. As an ESE driver, the Petitioner's immediate supervisor was Jacqueline Dennis. Ms. Dennis did not work in the same garage from which the Petitioner was based. The Petitioner has been involved in a continuing series of grievances against Mr. Valentine Gallas, a "Route Specialist" for the Respondent. The grievances, filed prior to the complaint to the Florida Commission on Human Relations at issue in this proceeding, have been directed towards her discontent with work assigned to her by Mr. Gallas. Although Mr. Gallas was not the Petitioner's immediate supervisor, as a Route Specialist located in the Northwest Garage, he had supervisory authority over the Petitioner, as did Joanne Snodgrass, another Route Specialist in the same facility. One of the prior grievances was directed towards his request that she assume responsibility for opening a large metal gate at the entrance of the bus storage compound. The complaint was resolved by an agreement that she would not be asked to open the gate. Upon being requested by a different official to drive a later route and take responsibility to close the gate, the Petitioner complied with the request. Although she did not continue to drive the later route, there is no evidence that her decision was related to the request regarding gate closure. Another grievance centered on Mr. Gallas' directive that she drive a second bus run after she had completed her initial run. Mr. Gallas apparently did not provide the Petitioner with an opportunity to use the rest room prior to the second run. The Petitioner filed a grievance about the matter which was resolved by an agreement that, prior to being asked to take an additional route, she would be provided with a rest room break. The Petitioner asserted that because Mr. Gallas assigned her to a bus with a poor driver's seat, her back was injured. There is no credible evidence to establish that the seat caused or contributed to the claimed back injury. The Petitioner suggested that the clock in the bus driver's lounge was tampered with and resulted in her being reprimanded for tardiness. There is no credible evidence that the clock was intentionally tampered with to cause the Petitioner to be reprimanded. There is no evidence that any of the prior disputes between the Petitioner and Mr. Gallas were related to the Petitioner's gender or national origin, or were a form of sexual harassment of the Petitioner. When the Petitioner was driving a regular bus route, Mr. Gallas was responsible for her work assignments. When she began to drive an ESE route, she was no longer directly responsible to Mr. Gallas. In January 1993, the Petitioner, via a union representative, contacted school board officials and voiced her dissatisfaction with Mr. Gallas' alleged behavior. Late in January 1993, the Petitioner, accompanied by the union representative, met in an interview with the school board's personnel investigator. At the interview, the Petitioner stated that she believed she had been discriminated against on account of her gender and ethnic origin, and that she had been subjected to sexual harassment by Mr. Gallas. During the interview, the investigator attempted to obtain allegations of specific conduct, but other than as stated herein, the Petitioner was unable to offer such allegations. Although during the interview, the Petitioner alleged that Mr. Gallas had made derogatory comments regarding her ethnic origin and her weight, the only specific incident of which the Petitioner spoke was Mr. Gallas' alleged remark to her, "Oh, a Cuban." She offered no context for the remark. There was no specific remark regarding weight disclosed during the interview. The Petitioner also alleged that subsequent to Mr. Gallas' purchase of beverages for a group of bus drivers, he had repeatedly said she "owed him one" in a manner which the Petitioner interpreted as sexual. The remark continued until such time as the Petitioner purchased a beverage for Mr. Gallas. Further, the Petitioner alleged that in November 1992, Mr. Gallas came into the bus drivers' lounge and handed her an offensive written statement regarding intercourse which she interpreted as a request for sex. The investigator inquired as to whether Mr. Gallas had touched the Petitioner. She replied he had not. There was no mention of any other alleged inappropriate activity by Mr. Gallas towards the Petitioner. At the conclusion of the interview, the investigator expressed her concern about the serious nature of the charges. She assured the Petitioner that there would be no retaliation for the report of the complaints. She noted that the findings of the investigation would be confidential and requested that the Petitioner refrain from discussing the allegations pending the investigation. The investigator began her inquiry the day after meeting with the Petitioner. A meeting was scheduled with Mr. Gallas and with other persons who were aware of Mr. Gallas and the operation of the Northwest Garage. As to the investigator's request that the Respondent refrain from discussing the matter, the Petitioner failed to comply with this request. The matter became fodder for discussion in the workplace. A petition was initiated by several employees on Mr. Gallas' behalf. The Petitioner attempted to initiate her own petition drive without success. The matter was viewed by some coworkers as an attempt by the Petitioner to have Mr. Gallas' employment terminated. The investigator for the Respondent viewed the Petitioner's allegations with skepticism due to the "vagueness" of the specifics. The failure of the Petitioner to comply with the request to keep the matter confidential during the investigation did little to alleviate the investigator's initial concerns about the Petitioner's credibility. Despite the continuing controversy, the school board attempted to complete its investigation of the matters about which the Petitioner had complained. In an interview with the investigator, Mr. Gallas denied the charges. He stated that the remark regarding her origin occurred in the context of a discussion between the Petitioner and another driver overheard by Mr. Gallas, at which time the remark was made. He denied making any reference to her weight. Although acknowledging that he had seen the "intercourse" card in the garage, he denied having handed it to her. He denied any sexual intent in the "owe me one" remark. Other interviews were conducted with other persons who are knowledgeable about the operations of the Northwest Garage and Mr. Gallas' employment there. The investigator was unable to substantiate the allegations. Based on a review of the Petitioner's interview and allegations, Mr. Gallas' denial, and the inability to find further substantiation for the complaints, the investigator determined that there was no reasonable cause to believe that the complaints were credible. After the investigation and determination were completed, there was a time delay in providing notification of the determination to the Petitioner. The evidence establishes that the delay was not an attempt to deprive the Petitioner of any contractual or legal right but was due to nothing more than clerical error on the part of the personnel investigator. There is no evidence that there was any harm to the Petitioner related to the delay. In May 1993, the Petitioner filed the complaint with the Florida Commission on Human Relations (FCHR) which is at issue in this proceeding. As identified in the FCHR complaint, the Petitioner's allegations are addressed as follows: The November 1992 "intercourse" card incident-- The Petitioner asserts that in November 1992, as she was seated with two other bus drivers in the driver's lounge, Mr. Gallas entered the lounge, walked to the table where the Petitioner and her coworkers sat, and handed a card titled "intercourse" to the Petitioner. The card was an offensive attempt at humor and included a sexual invitation. Of the two coworkers at the table, only one saw the card. The Petitioner refused to permit the other coworker to see the card. All of the women testified at the hearing. Although the Respondent presented the investigator's recollection of Mr. Gallas' denial of the incident, Mr. Gallas was not called by either party to testify at the hearing. The testimony of the two drivers who were at the table when the incident occurred and who testified at the hearing substantiates the Petitioner's allegation. There is no credible evidence that prior to her January 1993 complaint about the incident, the Petitioner discussed the matter with any other person. The evidence fails to establish that Mr. Gallas' behavior regarding the "intercourse" card incident, although offensive and inappropriate, caused the Petitioner difficulty in performing her job duties or any other harm or injury. Offensive touching of the Petitioner by Mr. Gallas-- The Petitioner asserts that Mr. Gallas occasionally would stand too close to her and that on one occasion, he brushed against her breasts in passing her. There is no evidence that, prior to the filing of the FCHR complaint, the Petitioner had ever complained about unwarranted or offensive touching by Mr. Gallas. Upon direct inquiry by the school board's personnel investigator, the Petitioner denied that she had been touched by Mr. Gallas. The assertion is not supported by credible evidence. Mr. Gallas' sexual requests of the Petitioner-- There is no credible evidence that Mr. Gallas made any verbal sexual requests of the Petitioner. The only incident which may be viewed as a sexual invitation relates to the "intercourse" card addressed previously in this Recommended Order. The Petitioner "owed" Mr. Gallas-- The evidence establishes that at a luncheon attended by coworkers, Mr. Gallas purchased beverages for the group and made a statement to the effect that the recipients "owed him one." Mr. Gallas would occasionally repeat his "you owe me one" statement to the Petitioner. There is no evidence that the statement was made in a sexual manner or that such was intended by Mr. Gallas. Eventually, the Petitioner purchased a beverage for Mr. Gallas, stating "now I don't owe you one." After being bought a drink, Mr. Gallas no longer made the remark. Verbal slurs about the Petitioner's national origin-- The Petitioner is of Mexican, Spanish and Cuban origin. The Petitioner asserts that on one occasion, she became embroiled in an argument with Mr. Gallas during which he remarked, "Oh, You're nothing but a Cuban." There is no other evidence to support her assertion. The evidence is insufficient to establish that Mr. Gallas made such remarks to other employees or that such conversation was typical of him. The assertion is not credible. Terms and conditions of her employment-- The Petitioner asserts that the "terms and conditions' of her employment were different from other bus drivers with responsibilities similar to hers. The evidence fails to support the assertion. Drivers transporting ESE students generally have fewer students to transport than drivers of regular routes. It is possible that an ESE driver may transport only one or two children. ESE drivers often complete their routes before drivers of regular routes. Because the Petitioner was responsible for transportation of ESE students, her route was often completed earlier than other bus drivers. ESE drivers who have completed their routes may "stay on the clock" in which case they may be asked to provide assistance in clerical tasks or to complete other bus routes. In the alternative, drivers may "punch out" and leave. Additional work is assigned to drivers by the Route Specialist in the garage from which the drivers are based. Mr. Gallas was the Route Specialist in the garage from which the Petitioner was based. The Petitioner frequently remained on the clock and was accordingly assigned additional work to do. There is no evidence that any drivers who remained "on the clock" were treated any differently that was the Petitioner. On one afternoon, the Petitioner, suffering from back pain, returned from her route and laid down in her bus. Mr. Gallas came onto the vehicle and told her that she needed to be working. He suggested that she could be made to sweep the bus compound if she did not find other duties to complete. The evidence fails to establish that the Petitioner, who was on the payroll at the time she was resting in her bus, informed Mr. Gallas that she was not feeling well. The evidence fails to establish that Mr. Gallas' actions upon discovering the Petitioner at rest in her bus were related to her gender, national origin, or were a form of sexual harassment. There is no evidence that other drivers were permitted, while on duty, to rest in their busses. As previously addressed, on one occasion, Mr. Gallas directed the Petitioner, immediately upon her return from her normal bus run, to perform additional transportation duties. Mr. Gallas did not provide the Petitioner with an opportunity to use the rest room before beginning her second run. Subsequent to her complaint to appropriate authorities, Mr. Gallas was directed to permit the Petitioner to use the rest room before assigning additional responsibilities to her. Although Mr. Gallas' lack of concern about the Petitioner's personal needs was inconsiderate, the evidence fails to establish that the incident was related to gender, national origin, or were a form of sexual harassment. The Petitioner also asserts that other drivers or their spouses are permitted to bring personal vehicles into the bus compound and that she was not. The evidence fails to establish that other drivers or their spouses are routinely permitted to bring personal vehicles into the compound. The Petitioner complained that during a heavy storm one day, her husband came into the compound to pick her up and was asked to take his vehicle back outside the compound. On that day, Mr. Gallas offered to walk the Petitioner with an umbrella to her car but she declined. The Respondent's inquiry into the January 1993 grievance-- The Petitioner asserts that the school board's inquiry into her January 1993 grievance was incomplete and that the determination that the grievance was unfounded was inappropriate. The evidence fails to support the assertion. The greater weight of the evidence establishes that the Petitioner's complaints, as they were communicated to the school board, were as fully investigated as was possible. The Petitioner's complaints to the Board did not include allegations related to unwarranted touching, according such allegations were not investigated. Further, the investigation was hampered by the spread of rumor and innuendo throughout the workplace regarding the Petitioner's sexual harassment allegations. Although the evidence is not entirely clear as to where responsibility lies for the generation of the rumor and internal bickering, school board personnel involved in the investigation specifically directed the Petitioner to refrain from discussing the allegations pending the board's investigation. As previously stated, she failed to comply with this request. Coworkers of the Petitioner were also involved in discussion about the pending investigation. At that point, the workplace appears to have become divided into factions and the board's investigation was compromised. The evidence establishes that the board's investigation of the Petitioner's grievance was conducted appropriately and that persons with direct knowledge related to the allegations (including Mr. Gallas who was inexplicably not called by either party to testify at the hearing) were contacted and interviewed. Although the investigation became compromised and was completed prematurely, there is no evidence that based on the information obtained by board personnel, the board's determination that the grievance was unfounded was outside the authority of the board or unsupported by the information which the board had obtained The Petitioner seeks to be "reimbursed for all the pain and suffering I have endured...." The evidence fails to establish that such an award is appropriate. The Petitioner offered no evidence related to "pain and suffering" or which would establish that such injury, if present, is related to employment conditions. The Petitioner also seeks to be reimbursed "for any and all money which was used to seek legal consultation." There is no evidence that the Petitioner, who has represented herself throughout this proceeding, has incurred any expenses related to legal consultation regarding this complaint; therefore such an award is not appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed in this case. DONE and RECOMMENDED this 9th of June, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6652 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by the greater weight of credible and persuasive evidence. Proposed finding of fact paragraph six continues for approximately seven pages and consists largely of recitation of conflicting testimony. The testimony has been reconciled as indicated in this Recommended Order. The proposed finding is rejected as subordinate, unnecessary, immaterial and not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 8-9. Rejected, subordinate. 10-16. Rejected, unnecessary. This unnumbered proposed finding consists of "examples of inappropriate sexual behavior" by Mr. Gallas and is treated as follows: Rejected as not supported by the greater weight of credible and persuasive testimony: a. Rejected as irrelevant: c, b, e. Rejected as immaterial: d, f, g, h. This proposed finding consists of "examples of inappropriate sexual behavior involving Mr. Valentine Gallas and Ms. Denise Hoedt" and is treated as follows: Rejected, there is no credible evidence that the offer of an umbrella was "inappropriate sexual behavior b, k. Rejected, immaterial l, m, n, o. Accepted as modified. Remainder is rejected as not supported by the greater weight of credible and persuasive evidence. Rejected as not supported by greater weight of credible and persuasive evidence: a, g. Rejected, subordinate: d, h, i. Rejected, irrelevant: f. Rejected, not supported by the greater weight of credible and persuasive evidence. There is no credible evidence that the Petitioner or her husband have been subjected to restrictions regarding personal cars within the bus compound which are not generally applicable to all drivers, except when specific circumstances require otherwise. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to Pyles' attendance at meeting, unnecessary. Rejected as to note taking by the investigator, unnecessary. 12-13. Rejected, unnecessary. 16-18. Rejected, subordinate. 23-33. Rejected, subordinate, unnecessary. 34. Rejected as to ulterior motives of Petitioner, unnecessary. COPIES FURNISHED: Thomas E. Weightman, Superintendent Pasco County School System 7227 Land O' Lakes Blvd. Land O' Lakes, Florida 34639-2805 Denise E. Hoedt 11605 U. S. Highway 41 Spring Hill, Florida 34610 Mark Graves, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
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 issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
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 is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.
Findings Of Fact On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after 4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez. When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus, and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated. Nor should the use of profanity and the lack of respect by the students be tolerated. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus. Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West Bay. When she stopped at 20th Street, she advised dispatch that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity. Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students. Section 9.02 of Handbook provides: 9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides: 10.5.2 Handling Serious Problems Tips on handling serious problems: Follow your school's procedures for discipline or refusal of rights to ride the bus Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway. Secure the bus. Take the ignition key with you if you leave your seat. Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business. If a change of seating is needed, request that the student move to a seat near you. Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.
