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 Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her. If so, what specific disciplinary action should be taken
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since May of 1984. She is currently under suspension pending the outcome of this disciplinary proceeding. For the duration of her employment with the School Board, Respondent has held a school bus aide position and been assigned to the School Board's South Regional Transportation Center (Center), the director of which, since May of 1994, has been Patricia Snell. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: selection and promotion of employees; separation, suspension, dismissal, and termination of employees for just cause; the designation of the organizational structure of the DCPS and the lines of administrative authority of DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX, Section 13, of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article IX, Section 14F, of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4- 1.05, which is the School Board's "Drug Free Work Place General Policy Statement." It provides, in pertinent part, as follows: DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place. DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable. Policy Objectives To promote a healthy, safe working and learning environment; To seek the rehabilitation of employees with a self-admitted or detected substance abuse problem; To eliminate substance abuse problems in the work place; To provide a consistent model of substance-free behavior for students; To provide a clear standard of conduct for DCPS employees; and To hire drug-free employees. Policy Statement- Illegal Drugs Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions: a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . . Policy Statement- Alcohol and Prescription Drugs Alcohol, prescription, and over-the-counter drugs are legal and readily available. Generally safe and acceptable, these drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will be free of intoxication from alcohol. Employees in safety-sensitive positions, as defined herein, will be free of measurable alcohol concentrations. Further, employees will not manufacture or use alcoholic beverages while on School Board property or on duty. . . . Policy Statement- Employee Physical Examination/Screening Health Services Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules. Circumstances under which testing may be considered include, but are not limited to, the following: observed use of illegal drugs and/or abuse of alcohol during work hours; apparent physical state of impairment of motor functions; marked changes in personal behavior on the job not attributable to other factors; . . . Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test. Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results. The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place. DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabilitation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: A. Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. . . . According to Article V, Section 18, of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27, thereof, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. The School Board's Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including the aforementioned School Board Rule 6Gx13-4-1.05, as well as School Board Rules 6Gx13-3E-1.10, 6Gx13-4-1.06 , 6Gx13- 4A-1.21, and 6Gx13-4E-1.011.2 School Board Rule 6Gx13-3E-1.10 School Board Rule 6Gx13-3E-1.10 incorporates by reference the provisions of the School Board's Transportation Rules and Policies Manual (Manual), including those set forth below, of which Respondent was timely made aware. Section 4 of the Manual describes "school bus aide responsibilities" and provides as follows: There is no requirement in either the law or the regulations that require the assignment of school bus aides to school buses. Dade County however, has elected to assign aides to some but not all of its school bus routes. Aides are not automatically placed on a bus because it is carrying exceptional education students. School bus aides are assigned to act as attendants on the school bus with the primary duty of maintaining order on the bus to allow the driver to give full attention to driving. Under the direction of the driver the aide works with children, school staff and parents in loading and unloading operations and in seeing to the needs of exceptional education students. The work of the aide must allow the driver to devote full time and attention to the safe operation of the vehicle. The aide must understand that the driver is in charge of the bus and is responsible for its safe operation. School Bus Aide responsibilities are: Bus aides must be clean and neat in appearance at all times (in prescribed uniform while on duty), must not use profane language, nor be under the influence of drugs or alcohol, nor use tobacco in the presence of students. Bus aides must abide by all safety rules and regulations which pertain to drivers but which do not relate specifically to driving tasks. Bus aides must be familiar with the rules of student conduct in order to assist in student behavior management and should have a working knowledge of the capabilities and limitations of the various categories of exceptional children. The aide shall prepare and maintain an accurate seating plan. Bus aides should be familiar with the use and location of all safety or emergency equipment (e.g., first aid kit, fire extinguisher, reflector) and should assist the driver in using this equipment should the need arise. The school bus aide must understand and learn how to assist the driver should it become necessary to evacuate the bus in an emergency. In dealing with physically handicapped students, bus aides will assume primary responsibility for loading and unloading students, must be familiar with the operation of wheelchair lifts and use of restraining devices and other equipment used in the transportation of the handicapped. Additionally, bus aides must ensure that wheelchairs are properly attached to their tie-down devices, and that use of such devices is consistent with the specification requirements as determined by the year of the school bus. The school bus aide should assist the driver in preparing reports, checking the working condition of safety equipment, and performing routine cleaning jobs. The bus aide and driver must have a good working relationship. The school bus aide should become familiar with the route, with the loading and unloading procedures, and be attentive to the location of the bus at all times along the route. The aide should be able to guide a substitute driver when this becomes necessary. The school bus aide shall render first aid, if necessary, to the limits of his/her training and abilities, and seek prompt aid by the best possible means available. This assistance shall be limited to that which may be normally expected of a reasonably prudent person. The school bus aide shall check under every bus bench at the end of every run. The school bus aide shall sit with or behind the last student on the bus in order to observe and monitor all the students on the bus. As a reading of Section 4 of the Manual reveals, the duties of a school bus aide are safety-sensitive and involve direct contact with students. Section 9 of the Manual describes the Department's "attendance policy" and provides as follows: ATTENDANCE RESPONSIBILITES School bus driver/aides are expected to be prompt and punctual in their attendance on all work days in accordance with the current calendar and their assigned schedule or contract. ABSENCES, AUTHORIZED For absences to be authorized, they must be reported to the driver's/aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time but not later than prior to the next scheduled report time. Even in an emergency every possible effort must be made to inform the Dispatcher. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Proper forms shall be completed promptly for payroll purposes. ABSENCES, UNAUTHORIZED Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver/aide does not report to work fifteen (15) minutes after the scheduled report time, or does not call in absent before their report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCE Drivers/aides must notify their Transportation Center's Dispatch Office as soon as they have determined they cannot report to work. Do not make arrangements on your own for a substitute! All arrangements must be made by the Dispatch Office. If you will not be reporting for work on regular school days, call in immediately. Speak with the Dispatcher, or your Field Operations Specialist. If you cannot report to work because of an emergency situation, contact the Dispatch office as soon as you possibly can. If the situation requires you to leave the area, have a relative or friend contact the office in your place. If your absence will occur sometime in the future, give the Dispatch Office as much advance notification as possible. When you contact the dispatch office, explain the reason for your absence, how long you will be off, and the estimated date of your return. If you will be off work for more than one (1) day, you must contact the office each day, prior to your report time, with a complete update of the situation. The only times you do not have to contact the office on a daily basis are as follows: Admission to a hospital as a patient. Maternity leave A doctor's work release for a specified number of days Extended sick leave Approved leave of absence If you are out of town CHECK-IN POLICY All employees are expected to arrive at work on or before their scheduled report time. Drivers/aides will be given a five (5) minute grace period to report to work, during which no disciplinary or financial action will be taken. For example, if you are scheduled to report for work at 6:00 a.m., as long as you sign-in by 6:05 a.m. you will be allowed to go out on your assigned route, with no repercussions. Drivers/aides who report to work 6-15 minutes after their scheduled report time will be considered "tardy." Tardy drivers/aides will be permitted to work. However, the Dispatch Office may assign a stand-by or substitute driver/aide to the route of the tardy driver/aide. Driver/Aides more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers/aides and not allowed to drive their route. A record will be kept of the amount of time the employee was late. Lost time will be accumulated, and employees will be docked pay in 1/2 day increments. Drivers/aides who report to work 16 or more minutes after their scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on unauthorized leave-without pay (ULWOP) and shall be subject to disciplinary action in accordance with the AFSCME Contract. Extenuating circumstances will be evaluated by the Center Director, and upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. PAPERWORK It is the driver's/aide's responsibility to report to the supervisor to complete and/or produce all required paperwork related to their absence on the first workday upon their return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. School Board Rule 6Gx13-4-1.06 School Board Rule 6Gx13-4-1.06 is the School Board's "tobacco-free work place" rule. It provides, in pertinent part, that, as of September 1, 1989, the "[u]se of tobacco products is not permitted . . . on school buses." School Board Rule 6Gx13-4A-1.21 School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. School Board Rule 6Gx13-4E-1.011 School Board Rule 6Gx13-4E-1.011 addresses the subject of "absences and leaves" and provides as follows: No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without prior approval shall be deemed to have been willfully absent without leave. The Center's Check-In Procedures In August of 1994, a few months after she assumed her position as the director of the Center, Patricia Snell sent the following memorandum concerning "check-in procedures" to all of the school bus drivers and school aides assigned to the Center: All drivers and aides must pick-up their bus keys or tag from the key board in the Dispatch office. This is the method of checking in for your shift. If you do not check in, your route will be given to a substitute driver and you will be considered NO CALL/NO SHOW for that shift. All drivers and aides must return their keys and tags to the key board immediately after each shift. Dispatch will have a list of field trips and those drivers and aides will then turn their keys and tags in the slot in the dispatch office if after hours. If there is a problem with your bus, turn in bus keys with the D.R.R. to Dispatch. If you are assigned a spare, then the spare bus keys will be placed on your assigned key hook prior to your shift. Your regularly assigned bus will not be returned until your assigned spare bus is fueled, swept, trash is emptied, windows up and parked in the proper parking space. You need not sign in. The Office Helpers and Dispatchers will keep track of your arrival times by use of the key board. The Tardy Policy will be strictly enforced. Employees who are 6-15 minutes late These employees are "late" or "tardy" and appropriate progressive discipline will be initiated. Such employees will be permitted to work their shift. Employees who are 16 or more minutes late These employees are recorded as "unauthorized leave without pay" and are not permitted to work that shift. Appropriate disciplinary action will be initiated. Respondent received her copy of this memorandum on August 25, 1994. Previous (Pre 1994-1995 School Year) Warnings Given Respondent Regarding Attendance and Leave Unauthorized leave was a subject with which Respondent should have been familiar at the time she received Snell's memorandum inasmuch as Respondent had received disciplinary warnings from her supervisors concerning the matter in the past. For instance, on February 11, 1988, she had received a memorandum (dated February 3, 1988) from Jack Schee, the then- director of the Center, which read as follows: While signing the payroll on January 29, 1988, I became very disappointed to discover that you had already started the new fiscal year with unauthorized leave without pay. This carefree, unresponsible attitude has got to change. The department, and more specifically your co-workers, count on your presence daily to accomplish our mission to provide the students of the Dade County schools with whatever is necessary to enhance their education. All employees in the Department of Transportation are being monitored for poor attendance and unauthorized leave without pay. In order to improve attendance, I am prepared to follow-through with any necessary action, such as conferences or suspensions, as the situation merits. Our records indicate that this is your 1[st] unauthorized absence. Per AFSCME Contract, Article XII, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totaling ten or more work days during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." In addition, Respondent had received written Operational Reminders for unauthorized absences on July 6, 1988, and September 5 and 7, 1989. Furthermore, on May 10, 1990, Schee had held a conference-for-the-record with Respondent to discuss Respondent's attendance record. Schee subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference. Schee's memorandum read as follows: A conference-for-the-record was held in my office on May 10, 1990 to discuss the attendance record of Ms. Jennifer Gardner, bus aide. In attendance at this conference were Ms. Gardner, Ms. Karen Crapps, route manager, and myself. Ms. Gardner stated that she did not want to have a representative present at the conference after I explained that she had the right to representation. I explained that on numerous occasions, the most recent being May 4, 1990, Ms. Gardner had failed to report to work and did not call the office to inform us of her absence. In addition, on May 4, 1990 Ms. Gardner reported to work thirty-five minutes late and missed her work assignment. On May 8, 1990, her assigned driver, Ms. Helen Spence, informed the office that Ms. Gardner reported to work on May 7, 1990[,] but that she fell asleep during most of her Southwood run. Ms. Gardner then stated that she had no comment to make concerning her attendance record. She stated that she did fall asleep on the bus but did not sleep the entire Southwood run. I concluded the conference by stating that her attendance record would be closely monitored and that if improvement was not made stronger disciplinary action would follow. I also informed Ms. Gardner that she would receive a memorandum of understanding concerning her attendance. The "memorandum of understanding" to which Schee referred was received by Respondent on May 16, 1990. It read as follows: On May 10, 1990 we held a conference-for-the- record concerning your attendance on the job and your failure to inform the office when you are not coming to work. I expressed the fact that I was extremely disappointed that your attendance has not improved since we have discussed this problem many times before. I then explained to you that if you continue to fail to report to work and do not inform the office then I would forced to request more serious disciplinary action. By way of this memorandum I am instructing you to inform the office at least 30 minutes before your reporting time on any occasion in which you cannot come to work. I am also instructing you that you will not be allowed to report to work late and expect to be paid for that time. If your performance does not improve I cannot guarantee your employment for summer school session. As acknowledgment that you have received this memorandum, and understand it, please sign below and return to me. A copy is provided for your purpose. Respondent had also received written Operational Reminders for unauthorized absences on May 6, 7 and 8, 1991. On May 15, 1991, she received a memorandum (dated May 9, 1991) from Schee concerning these unauthorized absences. The memorandum read as follows: During the payroll period ending May 9, 1991, you chose to take Unauthorized Leave Without Pay on May 6, 7 and 8th. You are professionally accountable to report to work on time and/or call the operations office no less than one-half hour prior to your check- in time, to inform them of your absence. Failure to call within the prescribed time constitutes Unauthorized Leave Without Pay. The attendance of all employees in our department is monitored daily. In order to improve attendance, I am prepared to follow through with any necessary action, such as a conference-for-the-record or suspension, as the situation merits. Our records indicate that this is your 3rd unauthorized absence. Per AFSCME Contract: Article XI, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totalling ten or more working days during the previous twelve-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." Warnings Given Respondent Regarding Attendance and Leave During the 1994-1995 School Year On November 16, 1994, Respondent received a written Contact Report from the Center's coordinator, Wynona Sleeth, concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: Six half days NCNS [No Call/No Show]. One whole [day] unauthorized. Any day you do not have time available is unauthorized. Any time you call in after due time is NCNS. Sleeth subsequently, on or about December 21, 1994, provided Respondent with the following Letter of Deficiency: This is to inform you that you have accumulated 17 Absences Tardies NC/NS 9 ULWP [unauthorized leave without pay] since 8-29-94. I am reminding you that 3 consecutive days of ULWP constitutes abandonment of position and may be subject to a recommendation for disciplinary action not excluding suspension and/or termination. An accumulation of 10 or more days of ULWP may warrant a recommendation for termination. Your job performance is important to us and we would like to assist you to improve. If you need assistance, please come to the operations office to discuss this matter. On May 11, 1995, Snell and Sleeth held a conference- for-the-record with Respondent concerning Respondent's attendance record. Snell prepared and provided to Respondent on May 17, 1995, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: A Conference-for-the-Record was held in my office on May 11, 1995. Yourself, Ms. Wynona Sleeth, Coordinator and this administrator were present. The conference was held to discuss your attendance to date. You had notification of [your] right to union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed by the District since May 2, 1984. You were reminded of memos you had received and signed notifying you of this school year's absenteeism. A calendar highlighting the days you were absent was explained to you and you were given a copy of Article XI, Section 1(D) of the union contract. You were asked if you needed the Employee Assistance Program. You replied that you did not need it. I then read the [written absence from] worksite directive to you and what you were required to do from this point on and that non-compliance could lead to further disciplinary measures up to and including suspensions or termination. Respondent had received a copy of the "[written absence from] worksite directive" the day of the conference-for-the- record. It read as follows: Please be advised that you have been absent forty-four days (44) days from the worksite during the 1994/95 school year. Since your absence from duties adversely affects the effective operation of this worksite, you are apprised of the following procedures concerning future absences: Intent to be absent must be communicated directly to this administrator or the administrator on duty before your assigned shift. Absence for illness must be documented by your treating physician and a written medical note presented to this administrator upon your return to the site. These directives are in effect upon receipt of this notice and are necessary to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities and could lead to further disciplinary action up to and including suspensions or termination. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1994-1995 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 26 days: August 30, 1994; September 28, 1994; October 19, 20, 26 and 31, 1994; November 2, 10 and 28, 1994; December 22, 1994; January 25, 1995; February 8, 9, 14 and 16, 1995; March 7, 10 and 22, 1995; April 17, 26 and 28, 1995; May 1, 3, 17 and 26, 1995; and June 5, 1995.3 Respondent was offered a contract for the following school year and she accepted the offer. The 1995-1996 School Year On October 2, 1995, Respondent received a written Contact Report from Sleeth concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: You had 9 hours of unauthorized absences for the pay period 8/25-9/7/95. You need to work on having a good attendance record. On October 18, 1995, Snell observed Respondent smoking a cigarette on a school bus. Respondent knew or should have known that such conduct was prohibited. Snell confronted Respondent and reminded her that smoking tobacco products on a school bus was forbidden. On December 12, 1995, Respondent received a written Transportation Operations Procedures Reminder from Sleeth concerning unauthorized absences on August 28 and 30, 1995; September 14, 1995; October 6 and 26, 1995; and November 6 and 29, 1995. On March 5, 1996, Snell held a conference-for-the- record with Respondent at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 14, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On March 5, 1996, at 10:15 a.m. a Conference- for-the-Record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not want union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of Unauthorized leave. Since August 28, 1995, you have accumulated 15 unauthorized absences; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19 and 1/23/96. Your absence from your duties directly impacts the effective operation of this worksite. You received a copy of Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract and these documents were reviewed with you. District Support Programs are available for you to contact at 995-7111 if you so desire. You stated that you understand the seriousness of the problem and will try to improve your attendance. Any further instances of Unauthorized Absences may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. Respondent also received from Snell on March 14, 1996, the following written warning (dated March 11, 1996): As of January 23, 1996, you have been absent on 15 occurrences without authorization. As per the AFSCME contract, Article XI, Section 4-B[:] "Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence." You are hereby officially warned that if you continue to have unauthorized absences disciplinary action my result, up to and including suspension, termination, or non- reappointment. On April 30, 1996, Respondent received a written directive from Snell to report for another conference-for-the- record in Snell's office at 9:15 a.m. on May 7, 1996, to discuss her "unauthorized leave and job performance." Respondent failed to report as directed. The conference-for-the-record was rescheduled for May 17, 1996,and ultimately held on that date. Snell prepared and provided to Respondent on May 28, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Friday, May 17, 1996, at 9:15 a.m. a conference-for-the-record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave. Since August 28, 1995, you have accumulated 23 occurrences of unauthorized leave which total 12 1/2 days; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19, 1/23/96, 4/2, 4/4, 4/17, 4/26, 4/29, 5/3, 5/13, and 5/16/96. Your absence from your duties directly impacts the effective operation of this worksite. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract were reviewed. The District Support Agency was offered and is available for you and may be contacted at 995-7111 if you so desire. You agreed to call in as soon as you know you are going to be out and to bring documentation in the next working day. Your record of unauthorized absences will be reviewed and this review may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1995-1996 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 30 days during the regular school year: August 28 and 31, 1995; September 14, 1995; October 6 and 26, 1995; November 6 and 29, 1995; December 4, 1995; January 5, 8, 10, 12, 18, 19 and 23 1996; February 16, 1996; March 19, 21, 26 and 28, 1996; April 2, 4, 17, 26, and 29, 1996; May 3, 13, 16 and 17, 1996; and June 4, 1996.4 Respondent was offered a contract for the following school year and she accepted the offer. The 1996-1997 School Year On September 4, 1996, and October 2, 1996, respectively, Respondent reported to work six and ten minutes after the scheduled starting time (6:00 a.m.) of her morning shift. On both of these occasions she received a written Transportation Operations Procedures Reminder regarding her obligation to report to work on time. Respondent also received written Transportation Operations Procedures Reminders for unauthorized absences in November of 1996, on the 5th (afternoon shift), 13th (afternoon and morning shifts), 14th (afternoon and morning shifts), 15th (afternoon shift), 20th (afternoon and morning shifts) and 26th (afternoon shift) of that month, and for reporting eight minutes late to work for her afternoon shift on November 25, 1996. Along with the written Transportation Operations Procedures Reminders concerning her November 5 and 13, 1996, unauthorized absences, Respondent was given an explanation of the provisions of Section 9 of the School Board's Transportation Rules and Policies Manual and Article V, Section 27, of the AFSCME Contract, as well as copies of these provisions. The written Transportation Operations Procedures Reminders concerning Respondent's November 14, 15, 20, and 26, 1996, unauthorized absences, and her tardiness on November 25, 1996, were each accompanied by the following "verbal warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On December 6, 1996, Respondent was referred by Keith White, an administrative assistant at the Center, to the School Board's Employee Assistance Program because of his "concerns" regarding Respondent's unauthorized absences. Respondent was advised of this supervisory referral on December 9, 1996. Respondent declined to participate in the School Board's Employee Assistance Program and continued to have erratic attendance. Respondent received, on January 5, 1997, and March 6, 1997, written Transportation Operations Procedures Reminders concerning her unauthorized absences and tardiness, each of which contained the following "written warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On March 11, 1997, Snell held a conference-for-the- record with Respondent, at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 20, 1997, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Tuesday, March 11, 1997, at 10:00 a.m. a conference-for-the-record was held with you in the office of the Director, South Regional Transportation Center. In attendance were Ms. Willie McKinney, Coordinator, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since 5/2 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave and job performance. Since March 19, 1996 you have accumulated 28 whole days of unauthorized leave from 42 occurrences. Your absence from your duties directly impacts the effective operation of this work site. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract, along with all attached warnings were reviewed. A referral to the District Support Agency [Employee Assistance Program] was made on December 6, 1996. The case was closed due to the fact that you declined to participate. You agreed to call in as soon as possible when you must be absent and to bring documentation in the next working day. You also agreed that you would not be absent unless absolutely necessary. Your record of unauthorized absences will be reviewed with Transportation Administration and the Office of Professional Standards and may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. By memorandum dated March 27, 1997, Snell brought the matter of Respondent's "attendance problems" to the attention of Jerry Klein, the senior executive director of the School Board's Transportation Department, and inquired of Klein if he "would like to move forward with [the] dismissal of Ms. Gardner." Klein, on April 1, 1997, sent the following memorandum to Barbara Moss, an executive director in the School Board's Office of Professional Standards: Ms. Jennifer M. Gardner, School Bus Aide, South Transportation Center, employee #145489, has accumulated 28 days of Unauthorized Leave Without Pay (ULWP) in the last 12 months. Attached please find supportive documentation from Ms. Pat Snell, Director, South Transportation Center. It is requested that Ms. Gardner be recommended for dismissal for violation of Article XI, Section 4(B) of the Collective Bargaining Agreement, excessive absenteeism. Your assistance in obtaining Board approval is appreciated. After reviewing the matter, Moss (by memorandum received by Respondent on April 17, 1997) directed Respondent to appear at a conference-for-the-record on April 30, 1997, in the Office of Professional Standards to discuss Respondent's "attendance to date, and [her] future employment status with the Dade County Public Schools." The conference-for-the-record was held on April 30, 1997, as scheduled. Moss subsequently prepared and later, on June 3, 1997, provided to Respondent a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Moss wrote the following: Action Taken You were offered an opportunity to resign your position with Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences: Intent to be absent must be communicated directly to the designated supervisor. Absences for illness must be documented by your treating physician and a written medical note presented to the designated supervisor upon your return to the site. If it is determined that future absences are imminent, leave must be considered and procedures for Board approved leave implemented if eligible to apply for leave. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit, to the services provided to students, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review [by] the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A-1.21, Employee Conduct, and School Board Rule 6Gx13-4C-1.02, Non-instructional Personnel. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects performance. You were reminded of the prime directive to maintain a safe working environment for all students and that your actions violated this directive. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Senior Executive Director in the Office of Professional Standards and the Associate Superintendent in the Office of Labor Relations and Personnel Management. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension, demotion, or dismissal. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. On June 5, 1997, Respondent reported for work with the smell of alcohol on her breath. Furthermore, she was unsteady on her feet and her speech was slurred. After conferring with Klein and Moss, Snell directed Respondent to submit to alcohol and drug testing at the Baptist Medical Group's facility in Homestead, Florida. Respondent went to the facility that same day5 and submitted to breath-alcohol testing, which revealed that Respondent had a breath-alcohol level of .191 and that she was under the influence of alcohol to the extent that her normal faculties were impaired. At the facility that day (June 5, 1997), Respondent also provided a urine specimen for testing. The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) D.O.T. Custody and Control Form, to LabCorp's laboratory in North Carolina for analysis and testing. The labeled and sealed container with the specimen and accompanying form were received by LabCorp on June 7, 1997. Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen. An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolites produced when cocaine and marijuana are ingested and metabolized in the body. Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, a reliable and accurate method of confirmatory testing, was utilized. The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine and marijuana metabolites in concentrations consistent with, and indicative of, Respondent's ingestion of cocaine and marijuana prior to the collection of her urine specimen. The drug test results were reported to the School Board and the Medical Review Officer (at the National Medical Review Offices, Inc., in Los Angles, California). On June 10, 1997, Respondent received a memorandum from Snell directing Respondent to contact the Medical Review Officer "as soon as possible." On June 10, 1997, after examining the test results and speaking with Respondent, who admitted that she had used both cocaine and marijuana, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no legitimate medical explanation for the presence of the cocaine and marijuana metabolites in the urine specimen Respondent had provided. On June 11, 1997, Moss held a conference-for-the-record with Respondent. The results of the alcohol and drug tests to which Respondent had submitted were discussed at the conference. Upon being told of the test results, Respondent stated, "I don't know about the cocaine, but I am aware of the marijuana. I was very depressed and was with some friends who were using marijuana and joined them in using." She further stated that she did not drink alcoholic beverages when she worked. Also addressed at the conference were Respondent's unauthorized absences. During the 12-month period preceding the conference (June 12, 1996, to June 11, 1997), she had been absent without authorization on the following 37 days for a total of 147 hours or 24.5 "workdays," as that term is defined in Article V, Section 18, of the AFSCME Contract: July 2, 1996 (3 hours); July 29, 1996 (3 hours); October 31, 1996 (3 hours); November 5, 1996 (3 hours); November 13, 1996 (6 hours); November 14, 1996 (6 hours); November 15, 1996 (3 hours); November 19, 1996 (3 hours); November 20, 1996 (6 hours); November 26, 1996 (3 hours); December 4, 1996 (3 hours); December 11, 1996 (6 hours); December 13, 1996 (3 hours); December 18, 1996 (6 hours); December 19, 1996 (3 hours); December 20, 1996 (3 hours); January 8, 1997 (3 hours); January 22, 1997 (3 hours); January 23, 1997 (6 hours); January 27, 1997 (6 hours); February 3, 1997 (6 hours); February 7, 1997 (3 hours); February 12, 1997 (6 hours); February 18, 1997 (3 hours); February 19, 1997 (6 hours); February 20, 1997 (3 hours); February 24, 1997 (3 hours); February 26, 1997 (3 hours); March 3, 1997 (3 hours); March 20, 1997 (3 hours); March 24, 1997 (6 hours); April 15, 1997 (3 hours); April 21, 1997 (6 hours); April 24, 1997 (3 hours); May 12, 1997 (3 hours); May 23, 1997 (3 hours); and June 5, 1997 (3 hours). Respondent was given another assignment at the Center pending further School Board review of her employment At its July 23, 1997, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for just cause, including but not limited to excessive unauthorized absence and violation of Drug-Free Work Place Policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
The Issue Whether the School District of Palm Beach County properly suspended Respondent for 15 days and, subsequently, terminated his employment for an incident at the bus facility compound on December 12, 2018.
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Stipulated Facts Respondent was hired by the School District of Palm Beach County (“District”) on March 9, 2007. At all times relevant to this Administrative Complaint, Respondent was employed as a School Bus Driver I at the Royal Palm Beach Transportation Facility (“Royal Palm Facility”) with the District. Employee and Labor Relations commenced an investigation on September 9, 2019, that was assigned Case No. 19/20-026. On October 29, 2019, Respondent was notified that the superintendent intended to recommend a 15-day suspension without pay and termination of Respondent’s employment to the Palm Beach County School Board (“School Board”) at the November 20, 2019, School Board meeting. On December 18, 2019, Respondent requested a hearing at DOAH regarding the suspension and termination of his employment. 1 Instead of recapping or summarizing the relevant and material testimony of witnesses, one of the parties submitted a Proposed Recommended Order with Findings of Fact that included and recited significant provisions of the hearing Transcript verbatim. This was not helpful and is contrary to the custom and practice at DOAH. This practice is discouraged in the future. Facts Presented At The Hearing The School Board operates, controls, and supervises the District, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. Petitioner has the authority to discipline employees pursuant to section 1012.22(1), Florida Statutes. Respondent was an experienced bus driver who had been trained in the proper method of interacting with supervisors, co-workers, and students, and exercising good professional judgment, and knew to follow certain rules, policies and directives. Respondent’s employment was governed by: a collective bargaining agreement (“CBA”) between the District and Service Employees International Union/Florida Public Services Union (“SEIU/FPSU”)(SB Ex. 77; Resp’t Ex. 11); School Board Policies (SB Exs. 70-74); Florida law (SB Ex. 75); and the School Bus Operators and Bus-Attendant Handbook (SB Ex. 76). Respondent was notified that he was being recommended for termination due to insubordination, ethical misconduct, and failure to follow policies, rules, or directives when he screamed and yelled at Senior Transportation Coordinator Cynthia Holloman (“Holloman”); used profanity, impolite language, and derogatory terms directed at Holloman which were heard by other employees as well; and left a school bus unattended in the middle of the bus driveway. SB Ex. 1; SB Ex. 4 at p. SB000022-35; and Pet’r Admin. Compl. Holloman testified at the hearing and her deposition transcript was filed. She was the senior coordinator at the Royal Palm Facility on December 12, 2018. However, the assignment of buses to the drivers was primarily handled by another employee, Bonnie Smith (“Smith”). As background, Holloman outlined that bus drivers would report to the facility in the morning to pick up their bus. If the driver’s regularly assigned bus was down or inoperative, the bus driver would be reassigned and take a substitute bus. The bus drivers were required to perform a pre-trip inspection each day to look for issues with their assigned bus. The pre-trip inspection would include, among other things, the drivers starting up their assigned bus. If the driver discovered an issue with the bus, the driver was required to fill out a form, bring it inside, and a mechanic would be assigned to fix the problem. If the problem could not be corrected, the driver would be assigned another bus. If another bus was not available, then Petitioner’s staff would assign an available driver a “double route” to cover the route. If a mechanic determined the bus was not safe to operate, then a bus would not be put on the road. Respondent testified that the morning of December 12, 2018, was an unusually cold morning. He had been assigned a bus that he believed did not have a working heater. His indirect concern with the heat not working was that the defroster linked to it would not function properly, creating a potential safety risk for the bus driver and the passengers. That morning, Respondent reported the problem with his assigned bus to Smith, and told her that he would not drive the bus in that condition. Marvin Jackson (“Jackson”), a bus driver at the Royal Palm Facility, also had a problem with the heater not functioning in his bus. Jackson testified that he would carry a rag or paper towels to wipe the windshield when driving. He took this action to operate his bus safely. Jackson indicated that on the morning of December 12, 2018, he also went into the office to complain about his heat not working properly. Leatrice Burroughs (“Burroughs”), another bus driver, testified that she also went to see Holloman on the morning of December 12, 2018, to complain about the heater on her bus not working properly. Holloman was in the dispatch office with Burroughs. Holloman was attempting to locate a bus with a functioning heater for Burroughs when Respondent arrived at the dispatch office. Holloman acknowledged that if the bus defroster was not working and the front windshield was fogging up, it would create a dangerous condition for the bus drivers. When Holloman was inside with Burroughs, Holloman heard Respondent outside raising his voice and cursing at Smith. Holloman agreed that Burroughs was in position where she could have heard Respondent using any profane or inappropriate language outside. Holloman heard Respondent cursing at Smith telling her he would not drive the bus without heat. Burroughs testified that she did not hear Respondent swearing or using any profanity. Holloman then spoke directly with Respondent and explained to him that there were no buses with heat available for him. He angrily responded and told her she was “full of sh_t,” in front of Burroughs. Burroughs denied hearing Respondent say that.2 Holloman related that during this same conversation Respondent, told her to “go f_ck herself” and that she instructed him to punch out and go home. Holloman also stated that Respondent called her a “b_tch,” and said he would park his bus and “sit on the clock.” When Holloman asked him if he was refusing to do his route that morning he replied “I’m not gonna do my route. I’m gonna sit here and I’m gonna get paid for it.” She responded that she was not going to pay him if there was work available and he was not willing to do the work. In response, Respondent told her “to go f_ck herself.” Notably, during this encounter with Holloman, Respondent made no mention or complaint to her about any problem with the defroster, nor did he claim that the bus was unsafe to drive. 2 It was not clear from the evidence what Burroughs’s proximity was to Holloman and Respondent during this discussion. Gary Mosley (“Mosley”), one of Holloman’s supervisors, arrived at the bus facility at some point after the heated exchange began. Respondent came back into the office. Holloman claims that, in the presence of Mosley, Respondent swore at her, at which time she stood up from her desk and told him she was not afraid of him. Mosley testified. He did not recall Louis swearing at Holloman, while he was in the office. However, when he spoke with Respondent outside, Respondent admitted that he said “f_ck you” to Holloman before Mosley arrived. Holloman also stated that Jackson was sitting in a chair right outside her office and could hear everything being said, including Respondent using profanity with her. Jackson testified that he never heard Respondent use any profanity that day. Jeanette Williams, a fellow bus driver, testified that she heard Respondent say he would not drive that “piece of sh_ t” bus. Pet’r Ex. 23. Dorinda Patterson (“Patterson”), another bus driver, provided a written statement for these proceedings. Patterson said that when Respondent left the office area she heard him say he was “not driving that piece of sh_t bus,” because it was “too f_cking cold.” Casandra Joseph (“Joseph”), who was a union steward, testified. She was contacted soon after the incident by Holloman regarding Respondent’s conduct on the morning of December 12, 2018. She was already at the Royal Palm Facility that morning. She spoke to Respondent immediately after the incident. He seemed very upset, was raising his voice, yelling and cursing, and used the word “sh_t.” However, Joseph did not hear what Respondent had said to Holloman earlier. Jose Pacheco (“Pacheco”), the bus shop foreman at the facility, testified. He was responsible for maintenance of the school buses. He testified that bus drivers are supposed to conduct pre- and post-trip inspections of their buses. If a bus driver has an issue during the pre-trip inspection they are required to contact dispatch, and dispatch will contact maintenance to see if they can resolve the matter. If maintenance cannot resolve the matter, they refer the bus driver back to dispatch. Pacheco was present on December 12, 2018, when Respondent complained about the heat not working on his bus. Pacheco testified clearly and distinctly that Respondent was yelling and using profanity. Respondent drove his bus in an area of the bus driveway and left it there, obstructing other bus traffic. His testimony was consistent with the testimony of other employees and was uncontroverted. The undersigned found his recollection of the incident to be particularly unbiased, credible, and persuasive. Of significance, Louis never mentioned to Pacheco that he would not drive his bus because the bus windows would fog up making the bus unsafe. Rather, it was Pacheco’s opinion that Louis was upset because it was too cold and his bus heater did not work properly. Smith, a transportation coordinator, also testified. Smith’s responsibilities included helping bus drivers get their buses on the road, helping with directions, and assisting bus drivers with their paperwork. Smith was assigned to the Royal Palm Facility. Prior to becoming a transportation coordinator, she was a bus driver. Smith testified that on December 12, 2018, she witnessed Respondent screaming at Holloman, stating that he did not want to drive his assigned bus because it was too cold. She overheard Holloman advise Respondent that if he was not going to drive his assigned bus, then he would need to clock out. Smith testified that during his heated exchange with Holloman, Respondent said “he was not driving a f_ cking cold bus.” And then he told her to go and “f_ck herself.” She related that Respondent then said that the administration did not know “how to treat the f_ cking drivers” and that is why he was acting the way he was acting. Because Respondent refused to drive the cold bus, Smith was asked to cover Respondent’s route. However, Respondent never gave Smith any paperwork to document or support his alleged concern with the heater or defroster. Carol Bello, a bus driver assigned to the Royal Palm Facility, also testified. Although she was not certain about the date, she recalled an incident approximately two years ago. Respondent was upset, loud, verbally abusive, and calling people names. She specifically recalled him stating, “F_ck you guys, I’m not driving that piece of sh_t.” She also saw him point his finger at Smith and call her “a bitch,” while ranting and raving in the bus compound around other workers and supervisors. She acknowledged that while some occasional profanity was used by bus drivers while clowning around, people did not talk to their supervisors like that. Joseph, another bus driver, testified that she had been a bus driver for fourteen years. On December 12, 2018, she observed Respondent come out of the office yelling and cursing at Holloman in the dispatch office. Respondent went on and on, cursing at Holloman and being very disrespectful to her. Respondent, Bernard Jean Louis, testified. While he admitted that he was upset that day, he essentially denied all allegations that he cursed at Holloman, or that he refused to follow his supervisor’s instruction. The undersigned did not find this self-serving testimony to be credible or persuasive, particularly considering the contrary and distinct recollection of events by several other trustworthy and more credible witnesses. The undersigned finds that Respondent’s profanity-laced tirade went on for some time and was done in different areas of the dispatch office and the outside areas of the bus compound. It is not surprising that some employees heard parts of Respondent’s outburst, while other employees heard other parts. Nonetheless, what clearly and convincingly emerged from the incident on December 12, 2018, is that Respondent was extremely upset because it was cold and he felt that the heater in his bus did not work properly. As a result of his uncontrollable and growing anger and frustration, he resorted to yelling, arguing, and cursing at his supervisor, Holloman, and failed to follow her directions. The undersigned credits and accepts the testimony of several witnesses on these points. Upon questions from the undersigned to clarify his testimony, Respondent admitted that he had not actually tested or inspected his assigned bus that morning before confronting Holloman about the problem. Rather, he concluded that his bus had an inoperable heater based on how this same bus had operated in the past. While there was a good deal of evidence relating to questions about a drug test taken by Respondent and second-hand evidence regarding the investigative role of other school board employees, this evidence was not particularly useful or relevant in this case.3 Despite no objection by either party to this broad array of other less relevant evidence, the issues in this case are framed and limited to the allegations of the Administrative Complaint filed by Petitioner, to wit: whether Respondent’s conduct or behavior on December 12, 2018, at the bus facility violated the law or school board rules or policies. Christian v. Dep’t of Health, Bd. of Chiropractic Med., 161 So. 3d. 416 (Fla. 2d DCA 2014) and cases cited therein. 3 More directly, the School Board abandoned and did not pursue the drug test as a basis for the termination. Respondent acknowledged this in the Amended Joint Pre-Hearing Stipulation. See Joint Pre-Hr’g Stip, § B., p. 2. To the extent other issues need to be resolved, the undersigned finds that the matter is properly before DOAH. Further, there was no persuasive evidence presented to prove that Petitioner failed to exhaust any administrative remedies, violated Respondent’s due process, or that Respondent failed to receive proper or sufficient notice of the conduct being relied upon by the School Board for his proposed suspension or termination. See generally, Fla. Bd. of Massage v. Thrall, 164 So. 2d 20 (Fla. 3rd DCA 1964).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Respondent without pay and terminating his employment. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire School District of Palm Beach County Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles D. Thomas, Esquire Thompson & Thomas, PA 1801 Indian Road, Suite 100 West Palm Beach, Florida 33409
Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.
Findings Of Fact Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses." Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment contract between the parties also requires Respondent to abide by all state and local laws and rules. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus, while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.
Recommendation It is RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1997. COPIES FURNISHED: John M. Hament Kevin J. Hubbart Kunkel Miller and Hament 1800 Second Street, Suite 970 Sarasota, Florida 34236 Harry A. Blair Harry A. Blair, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 Jack Taylor, Acting Superintendent Lee County Public Schools 2055 Central Avenue Fort Myers, Florida 33901-3988
