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 Whether just cause exists to terminate Ms. Ivey from her employment with the Pinellas County School Board.
Findings Of Fact In 2005, Ms. Ivey was hired by the School Board to work as a school bus driver (bus driver). The position of school bus driver is covered by the 2012-2015 Collective Bargaining Agreement between the School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). One of the many requirements to operate a Pinellas County school bus is to undergo a medical/physical examination every year. Among the physical requirements, bus drivers are to maintain at least 20/40 vision in each eye (with or without corrective lenses). On Wednesday, January 23, 2013, Ms. Ivey underwent her yearly physical examination (exam). As a result of this exam, Ms. Ivey's "Work Status" was "PE on hold," meaning Ms. Ivey was not able to work as a bus driver until some corrective measures involving her eyesight were obtained. Ms. Ivey completed her morning bus routes prior to her exam on January 23. After her exam, Ms. Ivey called in sick and did not complete her afternoon school bus routes. On January 24, Ms. Ivey completed both her morning and afternoon bus routes without incident. However, she took sick leave for the remainder of January 2013 (five work days). Ms. Ivey's first day back from her sick leave was February 4, 2013. Each school bus is equipped with a global positioning system (GPS) monitoring device. Once the school bus is turned on the GPS automatically records the school bus position every 30 seconds. The GPS also records other activities that the school bus performs, e.g., when the amber caution lights are turned on or off, when the red stop lights are turned on or off, when the entrance door opens or closes, etc. Because of the cost of fuel, the School Board's policy is that no school bus idles for more than five minutes. If a bus must idle for more than five minutes, the bus driver is required to turn off the bus until it needs to move. Each school bus is required to stop at each assigned bus stop whether or not a student is present. This is to maintain the published schedule for subsequent school bus riders. Each school bus is also equipped with a two-way radio for constant communication with Petitioner's transportation dispatchers. In the event of an incident (or accident), there is an additional emergency channel for use by the dispatcher and the affected school bus driver. Prior to each school year, school bus drivers are provided training in how to handle an incident (or accident). When an incident occurs, the driver is to immediately contact the transportation dispatcher, remain at the scene of the incident, ensure the safety of the students, and cooperate fully with the investigation. The bus driver is to complete an incident report and turn it in to the transportation division before the end of the incident day. The school bus that Ms. Ivey drove on February 4, 2013, was equipped with the two-way radio and the GPS. Ms. Ivey's published/authorized school bus route (for the middle school pick-up) started at 8:15 a.m. each morning when she was to pick up her riding assistant, Courtney McClendon,3/ at 102nd Avenue and Seminole Boulevard. This stop was in a large parking lot, close to a Little Caesar's restaurant (restaurant). The second bus stop, where the first student was to be picked up, was located at 97th Street North and Lake Seminole Drive East (corner location). Without the School Board's permission or authorization, Ms. Ivey unilaterally changed her school bus route to begin with the student pick-up at the corner location. On February 4, Ms. Ivey began her middle school bus route at the corner location. According to the GPS, Ms. Ivey entered the corner location neighborhood at 8:32 a.m., and could not have been at the designated corner location bus stop at 8:18 a.m. The student rider was not at the corner location when the school bus arrived. There was no indication, via the GPS, that either the amber caution or red stop lights were activated for this stop, or that the entrance door opened or closed to allow a student to enter the bus. Ms. Ivey turned the school bus onto 97th Street and stopped at the red light at 102nd Avenue (stop light corner). As Ms. Ivey was looking left (in order to turn right), she heard a knock on the school bus door, but did not see the student. Ms. Ivey completed the right-turn onto 102nd Avenue West and then, in her right rear-view mirror noticed a student falling down. Ms. Ivey did not immediately stop the school bus, but drove to the restaurant approximately two minutes away. There, Ms. Ivey turned on her amber lights and opened the door for Ms. McClendon to board the school bus. While at the restaurant, Ms. Ivey radioed Petitioner's transportation dispatcher that she might have hit a student. Ms. Ivey left the restaurant and drove back to the corner location. Despite having a two-way radio on board the school bus and repeated attempts by the dispatcher to contact her, Ms. Ivey and the dispatcher failed to communicate again for over 45 minutes. Upon notification of the incident, the transportation dispatcher switched to the emergency frequency; however, Ms. Ivey stayed on the regular two-way radio frequency. Two transportation supervisors were immediately dispatched to investigate the incident at the restaurant, as this was the location where the incident was reported. Once they arrived, the supervisors were unable to locate the school bus, Ms. Ivey, or Ms. McClendon (the trio) at or near the restaurant. In an effort to locate the trio, the supervisors traveled to several more school bus stops, but only found students waiting for the school bus.4/ After searching for over 45 minutes, the supervisors finally located the trio at the corner location. At that time the transportation supervisors determined that the stop light corner location was where the incident actually occurred. One week after the incident, on February 11, Ms. Ivey completed and turned in the "DRIVER'S REPORT OF INCIDENT." Petitioner's field operations supervisor, Ms. Cross had to make repeated requests to Ms. Ivey to get her to turn in the report. On three separate occasions, Ms. Ivey was noticed to appear at the Office of Professional Standards to answer questions regarding the January medical issue and the February 4th incident. At the meeting on February 20, 2013, Ms. Ivey refused to answer questions about either matter. During the second meeting on February 28, shortly after the meeting began, Ms. Ivey asked to use the restroom, left the room, and never returned to complete the meeting. Although she was noticed for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey did not arrive for that meeting until after 3:00 p.m. During this third meeting, Ms. Ivey again refused to answer questions about either matter. Ms. Ivey's employment disciplinary history with the School Board is as follows: 02/08/10 Ms. Ivey received a "Conference Summary" for failing to correct performance deficiencies; 02/18/10 Ms. Ivey received a Conference Summary" for failing to comply with board policy, state law, or appropriate contractual agreement; 10/20/11 Ms. Ivey received a "Caution" for failing to comply with board policy, state law, or the appropriate contractual agreement and misconduct; 05/23/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; 12/15/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; and 02/20/13 Ms. Ivey received a "Conference Summary" for failing to perform the duties of the position and failing to correct performance deficiencies. Despite repeated opportunities to provide her version of the events, Ms. Ivey declined to present her case in a manner that would warrant serious consideration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner terminate Ms. Ivey's employment as a school bus driver as a consequence of her repeated violations of School Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Ms. Ivey's termination from employment as a school bus driver. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 20th day of August, 2013.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of School Bus Operator Ava White-Smith (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a school bus operator employed by the Petitioner. School bus operators employed by the Petitioner are responsible for safely operating the vehicle and for maintaining order among the students being transported. On buses that are equipped with seat belts, students are to use the seat belts. Whether or not seat belts are present, students are to remain properly seated, facing forward, while the bus is in motion. The Petitioner prohibits consumption of all beverages on school buses. Part of the rationale for prohibiting beverage consumption by passengers on the bus is the inherent difficulty in identifying the type of beverage being consumed. At all times material to this case, the Respondent operated school bus number 611. Her school bus was equipped with seat belts. A large rearward-facing mirror located above the driver's position allowed the driver to observe the passengers. The bus was also equipped with an audio/video system that recorded the passengers being transported. On the morning of February 19, 2010, the Respondent transported students to the Manatee School for the Arts (MSA) and to the "Just for Girls" (JFG) School. The audio/video system recorded the behavior of the passengers on the Respondent's bus on February 19, 2010. Copies of the video recordings were admitted as exhibits and were played during the hearing and narrated by a witness for the Petitioner. The recordings were also reviewed subsequently by the Administrative Law Judge. On February 19, 2010, the Respondent first drove the bus to the MSA, where she discharged the majority of students being transported that day, and then she drove the remaining students to the JFG School. As demonstrated by the video recordings, many of the students on the Respondent's bus were not properly seated and were not wearing the seat belts. The Respondent made no attempt to require the passengers to sit in a forward-facing manner or to require that seat belts be used. During the time that all the students were present on the bus, the JFG School students sat in the rear of the vehicle. Some of the JFG School students surreptitiously consumed an unknown beverage from a container that was passed around by the students involved in the incident. As the bus trip continued and the beverage was consumed, the participating students became very loud and restless. The Respondent was aware that some students were consuming a beverage on the bus, but she made no attempt to intervene in the activity. Given the prohibition on consumption of beverages, and the demeanor of the students involved, the Respondent should have interceded in the situation. When the Respondent arrived at the MSA, the students attending that facility exited the vehicle, and the JFG School students moved to the front of the bus. Before the JFG School students were seated, the Respondent started to drive the bus away from the MSA. None of the JFG School students appeared to use the seat belts after moving. While being transported to the JFG School, some students sang or spoke loudly and inappropriately, one student stood and danced to a lewd song on her music player, two students were excessively affectionate, and a general "party" mood prevailed. It is inconceivable that the Respondent was unaware of the JFG School students' behavior after the MSA students were discharged from the vehicle. The JFG School students were at the front of the bus, in the immediate proximity of the Respondent, who on occasion conversed with and about the students. The Respondent made no significant attempt to require the students to be seated properly or to correct their behavior. Shortly after the bus arrived at the JFG school, school administrators discovered that some of the JFG School students who had been transported by the Respondent were intoxicated. One of the students had a half-emptied, half- gallon bottle of gin in her possession. The JFG School officials took disciplinary action against the students involved in the incident. None of the students being transported by the Respondent to the JFG School had ever been the subject of a disciplinary report filed by the Respondent. At the hearing, the Respondent testified that she paid little attention to the behavior of the students on her bus, because, in her experience, their behavior was not unusual. However, rather than excuse the Respondent's failure to properly supervise her bus passengers on February 19, 2010, the testimony suggests that the Respondent failed on a repeated basis to enforce rules clearly related to passenger safety. On February 23, 2010, the Respondent was driving the bus westbound on 30th Avenue in Manatee County, Florida, and arrived at an intersection with U.S. Highway 301, a well- traveled four-lane highway. There were no students on the bus. Presumably because the Respondent initially intended to make a left turn at the signaled intersection, she was in a left turn lane. The Respondent realized that the traffic signals at the intersection were not functioning. As required, she contacted the Petitioner's transportation dispatcher to advise authorities of the situation and to request permission to make a right turn; however, she failed to inform the dispatcher that she was located in the left turn lane or that a right turn would require her to take the bus across other traffic lanes. The dispatcher approved the Respondent's request, and she made the turn without incident. The Petitioner subsequently received a complaint from a "concerned citizen" about the Respondent's turn across the traffic lanes. There was no evidence presented at the hearing that there was injury or damage to any person or property by the turn. There was no credible evidence that the traffic present at the intersection at the time the Respondent completed the turn precluded the Respondent from making the right turn in a safe manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Ava White- Smith. DONE AND ENTERED this 26th day of August, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 26th day of August, 2010. COPIES FURNISHED: Scott A. Martin, EsquireManatee County School BoardPost Office Box 9069Bradenton, Florida 34206-9069Norman Adam Tebrugge, EsquireTebrugge Legal520 12th Street, West, Suite 203Bradenton, Florida 34205 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
The Issue Whether Petitioner has “just cause” to terminate Respondent’s employment as a bus operator due to incompetency and/or misconduct, for violation of Subsection 1012.33(1)(a), Florida Statutes; and for violations of School Board Policies 5.02, 5.03, and/or 5.29.
Findings Of Fact The School Board of Lee County, Florida (Petitioner) is the duly-authorized entity responsible for providing public education in Lee County, Florida. Dennis Osterbrink (Respondent), has been employed with Petitioner since September 21, 2006. Respondent has maintained his qualifications and is currently assigned as a bus operator in Petitioner’s transportation department. Respondent’s employment is governed by the agreement between the Support Personnel Association of Lee County (SPALC) and Petitioner. In October 2007, Respondent was operating a school bus route which transported students to and from Alva Elementary/Middle School. At that time it was reported to Transportation Supervisor Joe Howard that Respondent had claimed to a Sheriff’s deputy and other school board employees that the students on his bus were all “gang members” and were using gang signs and drugs. Following an investigation into the incident, Respondent was removed from the Alva Elementary/Middle School route for the remainder of the 2007-2008 school year. Respondent was then placed on a route driving students to and from East Lee County High School (ELCHS). In the Fall of 2008, Respondent, while assigned an ELCHS route, was making disparaging remarks about the students on his route. Respondent was counseled by Joe Howard about the comments he was making concerning the students. He was also counseled about an incident where he initiated his route too early and, as a result, only picked up four students, when the route typically had in excess of 30 students. Following the incidents involving the students from ELCHS, in early October 2008, Respondent went into the office of Robert Morgan, Director of Transportation East and alleged that Joe Howard, Respondent’s immediate supervisor and an African- American, was a “cell leader” of the “Black Panthers” political organization, and that he was recruiting students on his bus and in the school to plan a revolution. Respondent brought Morgan to Howard’s work space and showed him a picture of a black panther, that Howard had leaning against his cubical. Respondent offered this example as evidence of Howard’s affiliation with the Black Panthers. Respondent insisted to Morgan that the School District should contact the Federal Bureau of Investigation (FBI) and Homeland Security regarding Howard because he was collecting money from students as a “cell leader” of the Black Panthers, and was a danger to the community. Examination of the photograph revealed that the panther was shown in its natural habitat, with no indications of a political or any other message or insignia on it. Respondent offered no other proof to support his allegations. As a result of Respondent’s unsupported allegations, Respondent was removed from the East Lee County route, from under the supervision of Howard, and also from the Buckingham Compound and placed at the Six Mile Cypress Transportation compound. Howard’s testimony is credible that the picture of the panther in his office had no meaning, other than possibly as a school mascot. In addition, it is found that Howard is not a security risk to the School District or to the community. This is particularly the case since Howard served 21 years in the military and was honorably discharged and has worked more than 18 years for Petitioner as an exemplary employee. On March 30, 2009, Respondent was involved in a minor traffic mishap in the parking lot of the Six Mile Cypress Transportation compound with Linda Leamy, a fellow bus operator. Leamy is an African-American. After work, while backing out of a parking space, Respondent backed into Leamy’s car as it was passing by Respondent’s parking spot. Respondent’s vehicle struck the driver’s side rear door of her car. Leamy testified that she has been a bus operator for nine years and up until March 30, 2009, had never had dealings with Respondent. Following the collision, Leamy got out of her car to check the damage and to check to see if Respondent was injured or not. Respondent immediately began to disparage her by calling her a “stupid idiot.” Respondent used the term “bitches,” which was directed towards Leamy as he yelled at her. A crowd began to gather at the scene of the collision because Respondent was raising his voice. At that time, Leamy called dispatch and a supervisor came and escorted Respondent away from the scene. On May 15, 2009, Respondent was in the driver’s lounge at the Six Mile Cypress Transportation compound, and as he walked by a group of co-workers, he thought he heard another co- worker, Chrishaundra Phillips, say something derogatory directed towards him. Phillips is also African-American. Leamy was seated at a table nearby but was not involved. Respondent approached Phillips and said, “I know what you said.” Respondent then became irate, and slammed his hand on the table where Leamy was seated, and stated to her, “We can take care of this right now, let’s take it outside.” Respondent then stated, “I will defend myself against you people . . . .” Leamy stood up and asked everyone to witness Respondent’s actions. Respondent then stormed toward the exit door, which was not blocked, but yelled at another co-worker Vonetta Vickers, also an African-American, to “get out of my fucking way.” Respondent then called all the employees in the lounge a “bunch of gangsters” and stated, “Don’t push me or I’ll push back.” Morgan was called to handle the situation. Respondent’s irrational actions on May 15, 2009, were similar to his actions on March 30, 2009, and caused Leamy to be “scared,” and also to feel as though Respondent had it “out for her.” The testimony by several witnesses is reliable that on May 15, 2009, Respondent, while engaged in the confrontation in the drivers lounge, was using several types of racial remarks, including, “You people need to go back to where you came from, back to the housing projects; what are you going to do, get your gangs to beat me up?” Respondent also used the phrase, “all you black people” and the word “nigger” during his tirade. On August 10, 2009, while under suspension, Respondent was permitted to engage in bidding for a route for the 2009-2010 school year. While attending the bidding session, at Dunbar High School, Respondent informed Morgan that while walking through the parking lot, two black males drove passed him in a car, smoking cigars and made a shooting gesture towards him. When Morgan checked on the two students, he discovered that they were band members who were on campus as members of the marching band. There was no evidence presented to substantiate Respondent’s claims that they had threatened him. Respondent’s bizarre and racially motivated behavior continued. In late September 2009, Respondent filed a petition in the Circuit Court seeking a restraining order against both Leamy and Howard. Respondent alleged that Leamy tampered with his mail box; that she was in a gang; and that she was in the Black Panthers organization and had showed him some kind of weapon during the bidding. Respondent alleged that Howard threatened him in a parking lot; that he would have Respondent shot to death by two individuals; that his mailbox was tampered with; and that Howard was stalking him and was having others under his control stalk him. Both petitions were dismissed by the court. At a predetermination conference held on October 14, 2009, Respondent indicated that he was being terrorized by African-Americans and that Petitioner and its staff were complicit in this terrorism. He requested that Petitioner report all of the activities that he had alleged in the past to the United States Department of Homeland Security and the FBI. Respondent indicated that he was undergoing psychological and psychiatric counseling because of all of the “racial issues” he was dealing with, but failed to offer specifics regarding such treatment. Dr. Gregory Adkins, Chief Human Resources Officer, testified that Respondent’s testimony at the predetermination conference was “quite alarming.” He concluded that Respondent was not being specifically targeted by anyone and that Respondent was making “outlandish claims” that racism somehow runs through everything. Dr. Adkins stated that he questioned Respondent’s mental stability. Respondent was rated as effective in his annual performance assessment at the end of the school years 2006-2007, 2007-2008, and 2008-2009. Respondent was recommended for retention in his position, although two of his routing supervisors expressed concern about his communication skills with co-workers. The testimony is clear that Respondent is displaying irrational, paranoid behaviors while on the job, and should not be around students. It is apparent that Respondent cannot effectively supervise students while they are under his care on a school bus. Respondent has a severe problem coping or interacting with ethnically diverse people, which is characterized by his paranoid behavior, as outlined by the incidents highlighted above in this case. Respondent was thoroughly advised of his right to present testimony in his own defense, but he declined to testify in his own behalf. In addition, the testimony of the other witnesses presented by Petitioner was credible and persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County, enter a final order holding that just cause exists for termination of the employment of Respondent for violation of School Board Policies 5.02(2), (4) and 5.29(1); and that Respondent should be dismissed from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of June, 2010.
The Issue The issues in this case are whether Respondent violated Sarasota County School Board policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District and, if so, whether Respondent's employment with the Sarasota County School Board should be terminated.
Findings Of Fact The School Board is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Mr. Witt is the superintendent of schools for the Sarasota County School District. At all times relevant, Ms. Jones was employed with the School Board by contract as a school bus driver. In that capacity, Ms. Jones was classified as a non-professional and non-administrative contract employee of the School Board's transportation department. She agreed to accept the contractual appointment (school bus driver) to perform such duties and services as may be required to comply with all laws of the State of Florida and rules and regulations made by the School Board. The School Board's transportation department operated a bid policy for its school bus drivers. Under the School Board's bid policy, each school bus driver was afforded an opportunity to bid (make a written selection of a particular school bus route) on the school bus route for the forthcoming school year. At the start of the 2003-2004 school year, Ms. Jones bid upon and was awarded the Oak Park School (Oak Park) bus route. Oak Park was attended by elementary through high school-aged exceptional students or exceptional student education ("ESE") students, as defined under Section 4.12 of the School Board's policies manual. Ms. Jones was assigned bus number 9615. The first responsibility of the school bus driver is the safe operation of the school bus, and the second responsibility is providing discipline to those who are transported. In October of the 2003-2004 school year, Susan Snyder (Ms. Snyder) was assigned to work on school bus number 9615 as the school bus attendant. A school bus attendant's primary responsibilities are to ensure the safety of and provide care to the students that are being transported on the bus and to minimize distractions to the school bus driver caused by the students while being transported. The students who were being transported by Ms. Jones to Oak Park have behavioral issues, are physically handicapped, and/or have been unsuccessful at other schools within the Sarasota County School District. At various times during the 2003-2004 school year, between eight and 12 students between the ages 14 and 17 rode the bus driven by Ms. Jones. Four of those students were L.J., M.N., N.K., and J.M. The collective testimonies of these four witnesses established that they frequently used profanity on the bus in their daily conversations with each other and in their daily conversation, in the context of discipline, with Ms. Jones. The students would routinely yell among themselves and at Ms. Jones, and she, in return, would yell at them. When Ms. Jones told the students to do something, "sit down," "stop playing around," or "don't open the windows on the bus," the students refused to obey, and Ms. Jones would threaten the students with physical violence. Those threats would elicit like-kind responsive threats from the students. The evidence is inconclusive for the purpose of identifying specific profanity uttered by a specific student. However, the evidence is clear that an exchange of profanity occurred between Ms. Jones and the students identified in paragraph 4 hereinabove. At some unspecified time, but prior to December 9, 2003, Ms. Jones had previously and repeatedly instructed the students to leave the bus windows up while traveling. As they were traveling down Interstate 75 (I-75), N.K., ignoring Ms. Jones' previous instructions to leave the windows up, began lowering the window. Ms. Jones observed N.K.'s actions and repeated her instructions to leave the window up. She was unable to stop on the interstate, but when she reached the Fruitville, I-75 exit, Ms. Jones exited the interstate and stopped the bus. She then turned off the engine, got up from the driver's seat, and went to N.K.'s seat where she pushed N.K., and N.K. pushed her back. The shoving back and forth between Ms. Jones and N.K. ended with Ms. Jones slapping N.K. At the end of her bus run for that day, Ms. Jones reported the incident by a Student Discipline Referral Report. N.K. told his mother of the incident, and she informed Oak Park administration. After consideration of all the facts, Oak Park administration disciplined N.K. for his conduct on the bus. It is found that Ms. Jones willfully violated the School Board's policy by slapping N.K. The "Yugioh" playing cards incident The students would play a card game known as "Yugioh." The cards belonged to L.J. Ms. Jones had previously instructed the students not to play "Yugioh" on the bus because of the disturbance the game caused, and she specifically instructed L.J. not to bring his "Yugioh" cards on the bus. On December 9, 2003, L.J. and other students, with disregard of Ms. Jones' previous instruction not to play "Yugioh" on the bus, were again playing "Yugioh." Ms. Jones asked them to stop, and they ignored her. She asked L.J. to bring the cards to her, and he refused to obey her request. When she reached the stop sign at the intersection of South Briggs Avenue and Bahia Vista Street, in Sarasota County, Florida, Ms. Jones stopped the bus, turned off the engine, and approached L.J. where he was seated. An argument ensued, which was accompanied by Ms. Jones' attempt to take the cards from L.J. and his refusal to relinquish his cards. During this altercation, Ms. Jones struck L.J. about his head, shoulders, and face. She pinched his cheeks. L.J. and Ms. Jones exchanged vulgar insults back and forth. Ms. Jones told M.N., another student, to grab L.J.'s "titties" and pinch them, and he did so. It was noted that L.J. has a large body with an extraordinary fleshly chest. After the "tittie"-pinching incident, L.J. asked to be let off the bus at that location, which was not his usual bus stop, and Ms. Jones, as she returned to the driver's seat, initially refused to do so. After sitting in the driver's seat, Ms. Jones granted L.J.'s request to exit the bus at the intersection of South Briggs Avenue and Bahia Vista Street. It is found that Ms. Jones did not violate the School. Board's policy by permitting L.J. to get off the bus at a location other than his normal pick up and exit stop. Drivers are not allowed to prevent a student from getting off the bus; they can only call transportation dispatch and report the student by name and the location the student got off the bus. It is found that Ms. Jones did, however, violate the School Board's policy when she struck L.J. and when she requested and encouraged another student to inappropriately touch L.J.'s chest. When he arrived home, L.J. reported the bus incident to his parents, and they immediately registered a complaint against Ms. Jones with Oak Park administration. Two days later, December 11, 2003, L.J.'s father, L.J., Sr., filed a police report with the Sarasota County Sheriff's Department. An officer investigated the matter on December 19, 2003, by interviewing only L.J. and Ms. Snyder. Based upon those two interviews, the investigating officer recommended that the charge of battery be filed against Ms. Jones. There is no further evidence of record regarding the battery charge recommendation made by the investigating officer. The School Board's transportation dispatcher was informed of L.J.'s parents' complaint, and he radioed Ms. Jones and Ms. Snyder instructing them, upon completing the evening bus run, to report directly to his office and to give written reports of the L.J. incident. In her written report given immediately following the incident, Ms. Jones acknowledged that there was an exchange of profanity between her and the students involved, but she denied hitting L.J. or telling other students to pinch L.J.'s titties. The evidence of record reflects that Ms. Snyder did not dispute Ms. Jones' version of the incident. Ms. Snyder also executed a written incident report immediately following the incident containing her version of what occurred. According to the School Board, Ms. Snyder's initial written incident report was inexplicably lost. At the hearing, the School Board introduced an unsigned document (the School Board's Exhibit P-9) that was not sworn to by Ms. Snyder, purporting it to be a second revised report written by Ms. Snyder. This document is found to be unreliable. Later on the evening of December 9, 2003, after giving her written report that was somehow lost, Ms. Snyder called her Union representative and gave a description of what took place on the bus on December 9, 2003. A meeting was arranged with the director of transportation, Jody Dumas (Dumas). At the meeting, Ms. Snyder gave a version of the December 9, 2003, bus incident that was contrary to her earlier confirmation of Ms. Jones' December 9, 2003, written incident report. Ms. Snyder's recall of the December 9, 2003, incident alleged that Ms. Jones slapped and verbally abused and humiliated L.J. She went on to include a claim that Ms. Jones intimidated her and the students by telling everyone on the bus that they were to say nothing happened on December 9, 2003. Mr. Dumas conducted his investigation of Ms. Snyder's allegations by interviewing M.N. and J.M. on December 12, 2003. During the initial interview, M.N. confirmed Ms. Jones' version of the incident. Under the pressure of Mr. Dumas' continuous questioning, coupled with the promise that he would not be required to ride Ms. Jones' bus anytime in the future, M.N. capitulated and confirmed the "tittie"-pinching version of the incident and agreed with Ms. Snyder's "say nothing happened on December 9, 2003," addition to her version of the incident. It is found that Ms. Jones did in fact instruct another student to pinch L.J.'s titties, and the student, for reasons of his own, complied with the request while L.J. sat there humiliated. The evidence of record in support of Ms. Snyder's allegation that Ms. Jones intimidated her and all the students on the bus by telling them "say nothing happened on December 9, 2003," is unreliable and rejected by the undersigned. On December 10, 2003, Mr. Dumas suspended Ms. Jones with pay pending further investigation of the December 9, 2003, incident. Mr. Dumas, after his review of Ms. Snyder's version of what occurred and his interviews with unnamed students, met with Ms. Jones and confronted her with the "slapping and verbal abuse of [L.J.]" allegations. Ms. Jones denied slapping and verbally abusing L.J., at which time Mr. Dumas advised Ms. Jones that he would recommend her termination to the School Board. It is found that the suspension of Ms. Jones by Mr. Dumas was appropriate and in accordance with the School Board's policy. On December 19, 2003, in his memorandum to Scott Lempe (Mr. Lempe), director of human resources, Mr. Dumas set forth specific factual bases in support of his recommended termination of Ms. Jones: (1) Ms. Jones slapped L.J. at least two times in the face; (2) Ms. Jones told another student on the bus, M.N., to go over to L.J. and pinch his titties; and (3) on at least one other occasion, Ms. Jones told one student to slap another student because he was putting a window down. Mr. Lempe prepared a notice of termination on January 5, 2004, containing his detailed explanation of the grounds for the termination based upon Ms. Jones' violations of Section 5.30(2)(c) of the Sarasota County School Board policies manual, regarding corporal punishment and the Policy Manual, Code of Professional Conduct of Non-Instructional Support Staff, and Sections 1012.22 and 1012.27, Florida Statutes (2003), insubordination and misconduct in office. On February 18, 2004, the School Board terminated the employment of Ms. Jones with its transportation department as a school bus driver. The School Board proved, by a preponderance of credible evidence, that Ms. Jones violated the School Board's policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District, as alleged in the notice of termination dated February 18, 2004.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating the contractual employment of Respondent, Nancy Jones. DONE AND ENTERED this 19th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia 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 19th day of August, 2004. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 2750 Ringling Boulevard, Suite 3 Sarasota, Florida 34237 Nancy Jones 1280 Highland Street Sarasota, Florida 34234 Gene Witt, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3304 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue The issue is whether Petitioner, the Manatee County School Board (the "School Board"), may terminate Respondent's employment as a non-instructional employee for "just cause" as defined in Section 6.11 of the School Board's Policies and Procedures Manual, based upon the conduct alleged in the Amended Administrative Complaint filed at the Division of Administrative Hearings on June 9, 2009.
Findings Of Fact Respondent Stephanie Waiters was hired by the School Board as a bus driver on August 6, 1996. In 2005, she was promoted to the position of area coordinator. The five "area coordinators" are first-line supervisors responsible for overseeing the daily operations of the buses within their assigned geographical districts. In December 2008, Terry Palmer was promoted from assistant director to the position of director of transportation. Upon his promotion, he was informed by the School Board that, due to budget constraints, his former position would not be filled, nor would the open position of operations coordinator. On January 23, 2009, Mr. Palmer issued a memorandum to all transportation employees regarding the additional duties that transportation department employees would be required to undertake in response to the budget cuts. Mr. Palmer's memorandum stated that, because he would not have administrative assistance, the area coordinators would report directly to him and would assume certain "additional responsibilities": The expanded role of the Area Coordinators will include: 1. employee evaluations; 2. parent conferences; 3. coaching and assisting employees on their buses; 4. observing bus operations at stops, schools etc. when needed; 5. following through on complaints from schools, parents and/or citizens and coordinating action with others inside and outside the department; 6. counseling employees on performance issues and documenting employee discipline; 7. ensuring all employees assigned to them have all of the training and coaching they need to succeed; 8. initiating, in conjunction with the director, involvement of the Office of Professional Standards on extreme issues of poor performance and/or misconduct. Ms. Waiters was the area coordinator for District 5, which includes Palmetto High School. Bus 537 was assigned to District 5 and ran routes to, among other schools, Palmetto High School. The regular operator of Bus 537 during the 2008-2009 school year was Carol Hindman. Ms. Waiters testified that there had been a lengthy history of student disciplinary problems on Bus 537. On Thursday, February 5, 2009, Ms. Waiters phoned Jose Rodriguez, a substitute bus driver employed by the School Board, and informed him that he would be driving Bus 537 on Monday, February 9, 2009.1 On the morning of Friday, February 6, 2009, Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to familiarize himself with the route. Mr. Rodriguez testified that there were no problems on the bus until it reached the stop at 29th Street and 9th Avenue Drive East ("29th and 9th"). The students at this stop were rowdy and disregarded his instructions to put away their cell phones and iPods and to carry their backpacks in front of their bodies. From that stop onward, it became a "party bus," according to Mr. Rodriguez. The students informed Mr. Rodriguez that they run the bus, and that the "racist cracker bitch" Ms. Hindman just drives it. The students claimed to have hurt Ms. Hindman, and threatened to hurt Mr. Rodriguez if he attempted to control their behavior. One student began calling Mr. Rodriguez "Chico." Mr. Rodriguez testified that the situation was even worse on the afternoon route, with noise, screaming, radios playing and general horseplay making the situation dangerous. That night, Mr. Rodriguez phoned Ms. Waiters to tell her the Palmetto High School students on Bus 537 were "off the chain" and he was not sure he could handle the situation. She advised him to drive the bus on Monday and see how it went when he was alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on the students who made trouble and she would back him up in any way necessary. Mr. Palmer explained the disciplinary authority of bus drivers and the related referral process as follows: From the standpoint of what they can do, is obviously they should try to work with the student on the bus, they can counsel them, they can move their seat, they can work with them on the bus. If that's unsuccessful, they then write a referral which is given to the school for processing, describing what the behavior has been that is disruptive or that is [in] violation of the safety rules, and then that's given to the school to take care of... Typically, [upon receipt of the bus driver referral,] the principal will assign the assistant principal or have parent liaisons that will meet with the individual students regarding behavior, talk about what that behavior is, why it's dangerous, and so forth, counsel them the first time, and then go through a series of progressive disciplinary steps which can lead to suspension from the bus and ultimately expulsion if it's not corrected. The referral form indicates the disciplinary action taken by the principal or his designee. (Section 1006.10(2), Florida Statutes, prohibits the principal from delegating to bus drivers the authority to suspend students from riding the bus.) If the student is to be suspended from riding the bus, the student's parent must first be notified. The school bus operator is also notified of the discipline resulting from the referral. Before a suspended student may ride the bus again, he is required to present the pink carbon copy of the referral form to the driver.2 Mr. Rodriguez drove Bus 537 on the morning of Monday, February 9, 2009. He testified that it was "the same routine" on Monday. Mr. Rodriguez said that he did not even attempt to control the students because his efforts to do so the previous Friday had been such a failure. Mr. Rodriguez stated that he was concerned for his and the students' safety at the three railroad crossings the bus had to traverse on the way to Palmetto High School. The proper procedure is to put on the signal flashers when the bus comes within 50 feet of the railroad crossing. Then, when the bus is within 25 feet of the crossing, the driver turns off everything but the motor to achieve as complete a silence as possible, because he must be able not only to see but to hear whether a train is approaching the crossing. Mr. Rodriguez testified that he tried to silence the students at the railroad crossings, telling them it was for their own safety. They laughed and carried on with their screaming and horseplay. After finishing the morning route, Mr. Rodriguez reported to Ms. Waiters, who told him to write referrals on the students for their behavior at the railroad crossings and the general mayhem described by Mr. Rodriguez. Ms. Waiters told Mr. Rodriguez to take a School Board vehicle and drive to Palmetto High School to turn in the referrals. Mr. Rodriguez testified that he went to Palmetto High School and gave the referrals to the assistant principal, Carl Auckerman. Mr. Rodriguez testified that Mr. Auckerman told him he would take care of the matter. Mr. Rodriguez testified that the situation was at least as bad on the Monday afternoon route of Bus 537. Ms. Waiters phoned him at home that evening, and advised him to write more referrals on the misbehaving students. She asked him if he needed someone else on the bus, but Mr. Rodriguez said he could handle the situation. Mr. Rodriguez testified that he wrote referrals on Monday evening. He drove the bus on Tuesday morning, experienced the "party bus" situation again, and then wrote more referrals. He testified that he and Ms. Waiters drove to Palmetto High School with the new referrals. They met with Mr. Auckerman and the SRO, Officer Douglas Marston of the Palmetto Police Department. Mr. Rodriguez testified that Mr. Auckerman told them he was going to issue bus suspensions of eight-to-ten days to all of the students who received referrals. Mr. Rodriguez and Ms. Waiters were satisfied with this outcome, and left the office. Ms. Waiters generally supported Mr. Rodriguez' version of the events occurring on Monday, February 9 and Tuesday, February 10. However, Mr. Auckerman, the assistant principal, testified that he did not know Mr. Rodriguez, did not meet with him on February 9 or 10, and received no referrals related to Bus 537 prior to February 11, 2009. Officer Marston testified that he knew nothing of the situation on Bus 537 prior to the morning of Wednesday, February 11. The testimony of Mr. Auckerman and Officer Marston was consistent and credible. The testimony of Mr. Rodriguez and Ms. Waiters was inconsistent. Their chronology of events constantly shifted and was unsupported by the documentary evidence, which was consistent with the testimony of Mr. Auckerman and Officer Marston.3 Mr. Rodriguez testified that he alone met with Mr. Auckerman on the morning of Monday, February 9. In a deposition, Ms. Waiters testified that she accompanied Mr. Rodriguez to Palmetto High School on February 9 and was in Mr. Auckerman's office with Mr. Rodriguez. At the hearing, Ms. Waiters testified that her only meeting with Mr. Auckerman on February 9 occurred that afternoon at the Palmetto High School bus loop. During cross-examination, when she was confronted with her contradictory deposition testimony, Ms. Waiters testified: With all the dates, the 9th, the 10th and the 11th, it's very vague, everything. I probably did, probably didn't, but I did go in to see Mr. Auckerman. I don't know if he came to the bus loop on Monday or whether I went, but I did go there two consecutive days with Mr. Rodriguez. The above quote is typical of Ms. Waiters' testimony at the hearing. She would make a definite, affirmative statement as to where and when an event occurred, but when pressed by opposing counsel or contradicted by her own prior statements, she would retreat into vagueness and uncertainty. During her interview with Debra Horne, the OPS investigator, Ms. Waiters stated that referrals were submitted to Mr. Auckerman on Tuesday, February 10 and Wednesday, February 11, then changed her story to state that the referrals were not submitted until Wednesday, February 11 and Thursday, February 12. Both versions contradict her testimony at the hearing that she oversaw Mr. Rodriguez' writing of referrals on Monday, February 9 and Tuesday, February 10. Ms. Waiters attributed her confusion to Ms. Horne's interviewing style.4 Mr. Rodriguez was similarly subject to confusion as to the timing of events. As noted above, he testified that he and Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and that at this meeting Mr. Auckerman announced that the misbehaving students would be suspended for eight to ten days. During cross-examination, Mr. Rodriguez was presented with the referrals that he claimed to have written on February 10, and was forced to concede that these referrals described events that actually occurred on Wednesday, February 11. He unconvincingly continued to claim that the meeting occurred on February 10, and that there existed other referrals that were actually written on February 9 and 10 that were not part of the documentary evidence. Mr. Rodriguez claimed to have his own copies of these referrals, but was unable to produce them at the hearing. In her interview with Ms. Horne, Ms. Waiters claimed that on the morning of Wednesday, February 11, she was enforcing bus suspensions issued by Mr. Auckerman at their meeting on the previous day. At the hearing, she conceded that she could not remember whether the meeting with Mr. Auckerman occurred on February 10 or 11, and further conceded that no student had been suspended from Bus 537 prior to Wednesday, February 11, 2009. Mr. Rodriguez testified that Bus 537 was worse than ever on the afternoon of Tuesday, February 10, because the students knew they had received referrals and had nothing to lose. He was afraid for his personal safety when crossing railroad tracks. On the phone that evening, Ms. Waiters told Mr. Rodriguez that she would be riding the bus on Wednesday morning. As to the events leading up to Wednesday morning, Ms. Waiters testified that Mr. Rodriguez had difficulty writing his initial referrals on Monday because, as a substitute driver, he did not know the names of the students. Ms. Waiters lives in the area served by Bus 537, and drove many of the same students on her bus when they were in elementary school. She suggested that they "pull the tape" from Monday morning so that she could name the misbehaving students for Mr. Rodriguez. The School Board maintains recording video cameras on its school buses. However, the video camera on Bus 537 was broken and in need of repair. A written repair request submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February 10, 2009, stated, "Camera & tape don't work; tape pops out & stays out; no red light indicating camera is on." Nonetheless, Mr. Rodriguez testified that he and Ms. Waiters watched a video recording from Bus 537 on Monday, February 9. Ms. Waiters testified that there was no video tape from February 9 because the tape was "popped out," but that they were able to watch video after the morning route on February 10. She stated that "the tape was working fine, but the audio was totally messed up." No video tape documenting the events of the morning of February 10 on Bus 537 was presented at the hearing. The video camera was repaired and fully functional on the morning of Wednesday, February 11, 2009, and a video recording of the events of that morning on Bus 537 was entered into evidence.5 The undersigned viewed the videotape at the final hearing, and viewed a DVD version of the videotape twice more during the preparation of this Recommended Order. Ms. Hindman, the regular driver, drove Bus 537 on the morning of February 11. Mr. Rodriguez was already on the bus as the video commenced at 6:44 a.m. Mr. Rodriguez thought he was to drive the bus on Wednesday morning, but for some reason Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride the bus because Ms. Hindman had no control over the situation, and he would be free to watch the situation and continue writing referrals on the troublesome students. Ms. Waiters testified that she decided to ride Bus 537 on Wednesday morning because Mr. Palmer had ordered her to "take care" of the situation, which she took as permission to do whatever was needed to bring order to the bus.6 At 6:47 a.m., Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd Avenue, one stop before 29th and 9th. As the bus proceeded, Mr. Rodriguez consulted Ms. Waiters as he attempted to identify some of the troublemaking students. He held a sheaf of papers. Ms. Waiters admonished him not to discuss what they were about to do in front of the students7 already on the bus, and stated her intent to move those students to the back of the bus before the students boarded at 29th and 9th. The bus was scheduled to reach the stop at 29th and 9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters directed the students already on the bus to move to the rear seats. After the bus had been stopped for approximately ten seconds, a student at the 29th and 9th stop, whom Ms. Waiters identified as J.P., knocked on the door. Ms. Waiters moved to the door and out of camera range, but could be heard stating authoritatively, "Get your hands off the window." At the hearing, Ms. Waiters testified that she suspected J.P. was carrying a weapon and that she feared for her safety and that of the students on the bus, but believed that the safest course was to allow him to board the bus rather than confront him about the suspected weapon. This testimony cannot be credited, as Ms. Waiters made no mention of such a suspicion to the Sheriff's deputies who were later dispatched to the bus, to Mr. Auckerman or SRO Marston when they arrived at the bus, or to Ms. Horne during the later investigation. Ms. Waiters' testimony that she did not reveal her suspicions due to fear of reprisals from J.P. or his confederates, based in part on an apparently unrelated and unsolved break-in that occurred at her home five years earlier, is not credited. After admonishing J.P., Ms. Waiters stated, "Everybody that rode yesterday, let's get on the bus, come on." Then, only seconds later, she stated, "Everybody who rode this bus yesterday still thinks they are going to get on the bus. They're not riding anymore." She stood just inside the door and began allowing a few students on the bus one at a time, directing them to their assigned seats. Ms. Waiters could be heard telling one unseen student, "Off the bus, off the bus," while his voice could be heard saying, "But I ride this bus." She began reading out names from a list provided by Mr. Rodriguez. The named students, apparently those who did not make trouble for Mr. Rodriguez the previous day, were allowed to board the bus.8 After these students were boarded and seated, Ms. Waiters directed them to move to the back of the bus. Then, Ms. Waiters began letting the rest of the students from 29th and 9th onto the bus. As they boarded, she said, "Enjoy this ride. This is y'alls last day riding the bus ever." The videotape shows that these students boarded the bus in orderly fashion and were seated without incident. As the students were boarding, Ms. Waiters stated that the bus would not be stopping at 29th and 9th any more. "You're within walking distance, you'll walk," she said to an unseen student. By 6:59 a.m., all of the students had boarded the bus at the 29th and 9th stop. The bus remained stopped. The students talked loudly among themselves, but were otherwise well behaved. Ms. Waiters phoned her dispatcher and told her to request that the Manatee County Sheriff's Office send deputies to the bus stop at 29th and 9th. At approximately 7:02 a.m., a male student attempted to disembark, telling Ms. Waiters that he had phoned his mother and she was coming to pick him up. Ms. Waiters told him to be seated because they had to wait for the Sheriff's deputies to arrive. The student complained, "What Sheriff? Nobody didn't do nothing," but obeyed Ms. Waiters' instruction. While they waited, the students in the front of the bus could be heard laughing and joking about what various parents or step-parents might do when they came to the bus, such as breaking the windows or tearing off the door.9 At approximately 7:06 a.m., Ms. Waiters spoke to some unseen parents through the closed door of the bus, saying, "Wait a minute. We'll release them in a second." A few seconds later, she addressed the students: "We'll either be releasing you to your parents or the Sheriff. So if you have a cell phone, you want to call your parents. You can go ahead and call them." At this point, no Sheriff's deputy had arrived at the scene. The evidence established that the first deputy to arrive, Deputy Kenneth Warner, was not even dispatched until 7:07 a.m. This fact is significant because during her interview, Ms. Waiters told Ms. Horne that law enforcement had directed her to tell the student to call their parents. At the hearing, Ms. Waiters testified that a Sheriff's deputy told her to have the kids call their parents, and that she was just repeating what the deputy told her. Ms. Waiters' testimony on this point is clearly not true. At approximately 7:07 a.m., Ms. Waiters stated to the students, "We're waiting to release you to the Sheriff or your parents." At this point, the students were still in high spirits, talking loudly to each other but not noticeably upset. At approximately 7:08 a.m., a call was made to the Sheriff's Office by a parent. The caller informed the dispatcher that her son had used his cell phone to call her from Bus 537. Her son told her that the students were locked on the bus and the driver refused to speak to parents who had arrived at the bus stop in response to their children's calls. Deputy Warner arrived at 29th and 9th at 7:10 a.m. His view of the situation, which is entirely supported by the videotape, was as follows: [The students] were all sitting in their seats, no one was up, but they were vocal, they were expressing their concerns about comments and stuff like that Ms. Waiters was stating... She was kind of instigating an issue. She was walking up and down, and making comments. Like if they made a comment to her, she would reply with a comment which would fire them up, and then they would all have comments back and forth... [The four or five parents who arrived] just didn't know what was going on, as me, I didn't know what was going on, either. They were wondering why they were getting calls from their children. So, I don't know. They were upset. Deputy Warner credibly denied that he gave any directives to Ms. Waiters, or indeed had much idea why he had been summoned to the scene: "It was my impression when I arrived that she just needed me there as support, and that she was handling the situation." The videotape shows Ms. Waiters meeting Deputy Warner at the door of the bus, and stating that this was a situation similar to the "one we had a couple of weeks ago that I took care of."10 She told the deputy that certain students on the bus must either be taken to the juvenile detention center ("JDC") or be released to their parents, because there have been "a lot of problems" on the bus. Ms. Waiters offered Deputy Warner no further details as to why the students could not ride the bus to school. Because he was confused by the situation, Deputy Warner radioed dispatch and requested that SRO Marston respond to his call. At 7:12 a.m., Ms. Waiters announced to the students, "You need to call your parents because you will not be riding the bus. The ones that have parents at work, you'll need to get your aunts or something, because you will not ride the bus." Ms. Waiters began releasing students whose parents were waiting outside the bus. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told the remaining students that they needed to call their parents for a ride to school. Deputy Daniel Whidden was dispatched by the Sheriff's Office and arrived at the scene after Deputy Warner. Deputy Whidden, who was also a football coach at Palmetto High School and knew several students on the bus, testified that he gave Ms. Waiters no direction on how to handle the situation. Ms. Waiters told him that there had been problems on the bus the day before, and she was calling parents and having them pick up their children. At 7:23 a.m., Deputy Whidden boarded the bus and explained to the students that they were not allowed to disembark because the School Board was responsible for their safety. He told the students that SRO Marston was on his way to the bus stop to assist in transporting to school those students who were not allowed to ride the bus. Deputy Whidden testified that when he boarded the bus, the students were all in their seats. Some were protesting that they had done nothing wrong, but no one needed to be calmed down. This testimony is consistent with the evidence of the videotape. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the students in the rear would be transported to school on the bus. As to the others, she stated, "I told them yesterday at the school they might as well find transportation in the morning. Well, they came here, and we can't leave them standing out at the bus stop." In conversation with Deputy Whidden, a female student confirmed that some of the students had been told they would not be allowed on the bus for the rest of the year.11 Officer Marston and Mr. Auckerman arrived at the bus stop at 7:31 a.m. When they arrived, most of the students had already disembarked. At no time did Mr. Auckerman tell Ms. Waiters that the students on the bus should call their parents or be transported by Sheriff's deputies. Ms. Waiters' testimony to the contrary is not credited. Mr. Auckerman, Officer Marston, and Deputy Whidden drove students to Palmetto High School. The bus began to run again at 7:37 a.m., 44 minutes after it stopped at 29th and 9th. The bus made only one more stop before arriving at Palmetto High School. This stop occurred at 7:43 a.m. Two students boarded the bus. Bus 537 is scheduled to make five stops after 29th and 9th. Because of the delay, Ms. Waiters called the driver of Bus 534 to cover some of Bus 537's stops. However, not all of Bus 537's stops were covered, and Bus 534 was 15 to 20 minutes late picking up some of the students. Further, Bus 537 was scheduled to make an elementary school run after it dropped off students at Palmetto High School. The bus made only one of its nine scheduled stops for elementary school students because the parents of most of those students had given up on the bus and either driven their children to school or had the children walk.12 During the 2008-2009 school year, classes began at Palmetto High School at 7:45 a.m. Bus 537 typically arrived at Palmetto High School at 7:20 a.m. On Wednesday, February 11, 2009, Bus 537 arrived at Palmetto High School at 7:57 a.m., twelve minutes after the final bell. After the bus arrived at Palmetto High School, Ms. Waiters and Mr. Rodriguez went into the school and spoke to Mr. Auckerman. They presented him with the list of names that they had used to identify the misbehaving students on Bus 537. Mr. Auckerman told them that he would need referrals before he could take any disciplinary action against the students. Ms. Waiters and Mr. Rodriguez submitted some referrals on Wednesday, February 11, then submitted additional referrals on Thursday, February 12. The referrals described student misbehavior, such as failing to be silent at railroad crossings and using cell phones, but gave no indication that either Ms. Waiters or Mr. Rodriguez ever feared for their safety on Bus 537. Mr. Rodriguez testified that the only time he feared for his physical safety was when he had to drive the noisy bus over railroad crossings. He did not fear any sort of physical assault by the students on the bus.13 Mr. Auckerman passed on the referrals to Palmetto High School's parent liaisons, Robert Kelly and Kevin Jackson. "Parent liaisons" are School Board employees responsible for general disciplinary referrals and communicating with parents regarding student behavior and discipline. The principal of Palmetto High School has delegated the authority to issue bus suspensions to the parent liaisons. On Friday, February 13, Mr. Kelly interviewed some of the students. He decided that the referred students would be suspended from riding the bus, commencing Tuesday, February 17. However, as Mr. Kelly and Mr. Jackson were about to finalize the suspensions by entering the referrals into the computer system, Mr. Auckerman halted the suspension process pending a School Board investigation into the events of the morning of February 11. Mr. Auckerman was reacting to parent complaints about Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of transportation, also began receiving complaints. Mr. Palmer spoke with Ms. Waiters, safety officer John Searles, and school personnel, and was unsettled by the inconsistency of their stories. On or about February 18, 2009, Mr. Palmer referred the matter to the OPS. Ms. Horne then began her investigation of the incident. At the conclusion of her investigation, Ms. Horne presented a written OPS investigatory report to her supervisor and scheduled a meeting of all persons in Ms. Waiters' chain of command, up to Mr. Palmer, the transportation director. At a meeting on March 19, 2009, the School Board personnel met and recommended to the Superintendent that Ms. Waiters' employment with the School Board be terminated. The Superintendent concurred with the recommendation. Aside from contending that she was merely carrying out suspensions issued by Mr. Auckerman, which was completely at odds with the credible evidence produced at the hearing, Ms. Waiters' chief defense was that her actions on February 11, 2009, were consistent with the action she took in an incident that occurred on Wednesday, January 28, 2009, for which the bus driver received a laudatory write-up in the local newspaper and the praise of law enforcement and school officials. In the earlier incident, a substitute driver on a morning route to Lakewood Ranch High School pulled the bus over on State Road 64 and refused to continue because she believed the students' actions were placing her and the students in danger. In particular, the students were rocking the bus back and forth to the point that the driver feared losing control. Ms. Waiters drove out to the scene, followed shortly by at least six Sheriff's deputies. Ms. Waiters described the students as "out of control," "hanging out of the windows, yelling and cursing, throwing stuff out of the windows, rocking the bus." Ms. Waiters boarded the bus and was able to calm some of the students. The Sheriff's deputies called the parents of the troublemaking students and gave them the choice of picking up their children or having them taken to the JDC. According to Ms. Waiters, some students actually fought with their parents and had to be forcibly taken to the juvenile detention center. The next day, the local newspaper ran an article containing praise for the substitute bus driver. The principal of Lakewood Ranch High School and a spokesman for the Sheriff's Office were both quoted saying that she "did the right thing." Though Ms. Waiters was not mentioned in the article, it is clear from her testimony that she believed the praise was reflected on her. The differences between the incidents of January 28 and February 11, 2009, are clear. In the earlier incident, law enforcement was summoned to deal with an immediate, on-going dangerous situation. Sheriff's deputies took charge of the matter, with some assistance from Ms. Waiters, and concluded that the bus driver had done the right thing in stopping the bus when it became too hazardous to continue. In the February 11 incident, the videotape makes plain there was no danger whatever. Once allowed to board the bus, the students took their seats and talked among themselves. There were no threats, no disturbances, no rocking of the bus. Ms. Waiters' claim that she felt threatened was unsupported and not credible. The students, with good reason, appeared mostly puzzled as to what was happening. From the incident of January 28, 2009, Ms. Waiters apparently took the lesson that she was authorized to stop the scheduled running of a school bus for nearly an hour and to call out Sheriff's deputies to assist her in disciplining students for misbehavior that occurred on previous days. This was the wrong lesson. Ms. Waiters acknowledged that she did not have authority to suspend students from the bus, and claimed that she was not "suspending" the students; rather, she was restoring "order and control" on the bus for the students' safety.14 Ms. Waiters' actions might have been partially justified had there been some imminent danger such as that on the Lakewood Ranch High School bus on January 28, 2009, though even in that situation it was Sheriff's deputies, not Ms. Waiters, who removed the problem students from the bus. On Bus 537 on February 11, 2009, in the absence of any immediate threat or even untoward behavior by the students, Ms. Waiters took it upon herself to halt the bus and require students to phone their parents for rides to school well before law enforcement arrived on the scene. Ms. Waiters' actions were disproportionate to the situation on the bus, and constituted "suspensions" of the students under any reasonable understanding of that term. Ms. Waiters' actions on the morning of February 11, 2009, might merit discipline short of termination had Ms. Waiters fully and honestly cooperated in the subsequent investigation. However, Ms. Waiters stubbornly told a convoluted and contradictory version of events that made little sense on its face and was at direct odds with the consistent and credible testimony of School Board personnel and law enforcement officers who were present during the relevant events, and at odds with the direct evidence of the videotape from Bus 537. Ms. Waiters lack of candor throughout the process, coupled with the extremely poor judgment she employed in stopping the bus and suspending students without immediate cause or authority, fully justifies the School Board's decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Manatee County School Board, enter a final order that terminates the employment of Respondent, Stephanie Waiters. DONE AND ENTERED this 1st day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2010.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
Findings Of Fact Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound. The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC). Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006. On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department. Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative. Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone. On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired. Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005. Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time. Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus. On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus. Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound. When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day. Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily. Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005. Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run. Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident. Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired. Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic. Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed. De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search. Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search. During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a knife blade estimated to be a two inch to two and a half inch blade, along with other tools. Respondent admitted to de Leon that the knife was his. He also admitted that he had placed the knife in the briefcase, but had forgotten it was there. In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen. Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows: Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite. Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin. De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past. De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office. Respondent was asked to come into de Leon's office. Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible. A union representative did not arrive at de Leon's office prior to Respondent's departure. De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife. De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted. However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office. Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon. The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon. The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will. Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse, from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises. Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on. Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances. Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound. Respondent ignored the deputy's advice and drove from the premises. Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative. Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year. FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996). DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 18th day of August, 2006.
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 basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
