The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 29th day of December, 2014.
The Issue Whether the Petitioner, Warren Hayward, Sr., should be disciplined as an employee of the School Board?
Findings Of Fact The Petitioner, Warren Hayward, Sr., began employment as a school bus driver with the School Board sometime in either 1980 or 1981. At all times pertinent to this proceeding, Mr. Hayward was a bus driver for the School Board. At the time that Mr. Hayward began his employment as a bus driver with the School Board, he was given a copy of the School Bus Driver's Handbook by Mr. David Conrad Meyer, the Supervisor Director of Transportation of the School Board. Mr. Meyer was Mr. Hayward's immediate supervisor. Mr. Meyer also Supervised the other seven school bus drivers who worked for the School Board. Mr. Meyer was responsible for evaluating the eight school bus drivers and insuring their compliance with the law concerning the operation of school buses. Mr. Meyer had driven a school bus from 1972 until 1979 and has been Director of Transportation since 1979. On the morning of December 4, 1985, Mr. Hayward stopped at one of the regular stops on his route along Bay City Road in Apalachicola, Franklin County, Florida. There was a dirt turn around road off of Bay City Road which Mr. Hayward drove the bus around and up to the pavement of Bay City Road where he stopped the bus to pick up students. After stopping the bus that morning, Allen Dempsey, Lloyd Alford and William Thomas Jenkins, who were all friends, entered the bus with a few other students. Allen and Lloyd were in the ninth grade and Billy was in the seventh grade at the time of the incident. They all attended Apalachicola High School. The last three students to enter the bus were Allen, followed by Lloyd and then Billy. Students had been directed in the past that the first five seats of the bus were to be used only by elementary school students. On occasion, other students were required to sit in the first five seats as a disciplinary precaution. Other than those exceptions, the older students, including Allen, Lloyd and Billy had been instructed not to sit in the first five seats of the bus. Upon entering the bus on December 4, 1985, Allen, Lloyd and Billy proceeded to the middle to rear portion of the bus. Before Allen or Billy could get into a seat, Mr. Hayward began moving the bus. Mr. Hayward started the bus without warning and without insuring that all of the students were in their seats. When the bus first moved it jerked. When the bus began to move, Billy fell backwards into the seat and hit his head against the inside of the outer wall on the side of the bus. Lloyd, who had taken the seat across the aisle from Billy and had witnessed Billy fall, asked him if he was okay. Billy said that he was a little dizzy. As a result of the fall, Billy eventually had a knot on the back of his head. Billy did not suffer an permanent injuries, however. After Billy told Lloyd that he was little dizzy, Lloyd stood up and yelled toward Mr. Hayward that "you are suppose to wait until we are seated before taking off--you made Billy fall and hurt himself" or words to that effect. In response to Lloyd's comment, Mr. Hayward stopped the bus, got up out of his seat and stood in the aisle next to his seat. Mr. Hayward replied, in effect, that "you could have used one of the first five seats; I only have to wait until you are past the first five seats." Mr. Hayward then sat down and proceeded on his route. At no time on December 4, 1985, did Mr. Hayward inquire about Billy's fall or go back to where Billy was seated to check on him. Nor did Mr. Hayward report the incident to Mr. Meyer or any other person. At the time of the incident there were approximately fifteen students on the bus. None of the students, including Billy, reported the incident of December 4, 1985, to anyone at school that day. On the evening of December 4, 1985, Billy reported the incident to his Mother when he arrived home. After inspecting the knot which had appeared on Billy's head, Billy's parents, Lloyd and Billy went to the home of the principal of Apalachicola High School, Mr. Fox, and reported the incident. Mr. Fox sent the Jenkins family and Lloyd to see Ms. Gloria Tucker, the Franklin County Superintendent of Schools. Ms. Tucker met with them and observed the knot on the back of Billy's head. Ms. Tucker told Billy's parents that, if they wished to make a complaint, they would have to do so in writing the next morning. She also told them that she would contact Mr. Meyer and inform him that they wanted to make a complaint. After the Jenkins family and Lloyd departed, Ms. Tucker called Mr. Meyer and reported the incident to him. Mr. Meyer had not been told of the incident until this time. She directed Mr. Meyer to take the statements of the Jenkins family and the other students and to look into the matter. On the morning of December 5, 1985, Mr. Fox asked Allen, Lloyd, Billy and Matthew Cramer to write a statement describing the incident of the day before. Matthew Cramer was a student who was already on the bus on December 4, 1985, when Billy entered the bus. Matthew witnessed the incident of December 4, 1985. All of the students and Billy's parents filed statements. Because the statements were given on December 5, 1985 all of the students, except Billy, dated their reports as of that date. Billy dated his statement December 4, 1985, the date of the incident as opposed to the date he made the statement. At some point shortly after the incident, Billy was seen by a physician and his head was x-rayed. Mr. Meyer sent a letter dated December 9, 1985, to Mr. Hayward informing him that a complaint concerning the December 4, 1985, incident had been received and that it would be reported to the School Board at the regularly scheduled meeting on December 11, 1985. A copy of the written statements made by the students and Billy's parents was attached to the letter. Mr. Hayward, who received the letter and statements, was also told that he could respond if he wished. No response to this letter or the complaint was made by Mr. Hayward at that time. Billy's parents and other parents attended the School Board meeting on December 11, 1985. Because of concerns expressed by the parents for the safety of students riding Mr. Hayward's bus and concern for Mr. Hayward's safety, Ms. Tucker directed Mr. Meyer to ride with Mr. Hayward on his bus route. By letter dated December 12, 1985, Ms. Tucker informed Mr. Hayward that the Board had authorized her to commission an investigation concerning the incident of December 4, 1985, and other alleged incidents, and that J. Patrick Floyd, Esquire, Ms. Tucker's attorney, would conduct the investigation. Ms. Tucker also informed Mr. Hayward that the School Board had Suspended him with pay until the January, 1986, meeting of the School Board. Mr. Floyd conducted an investigation of the December 4, 1985, incident and other incidents, and submitted a written report to Ms. Tucker before the January 16, 1986, School Board meeting. At no time, however, did Mr. Floyd talk to Mr. Hayward. Ms. Tucker also discussed the report with Mr. Floyd. Based upon Mr. Floyd's report and based upon Ms. Tucker's understanding of other incidents involving Mr. Hayward's operation of his bus, Ms. Tucker recommended to the School Board that Mr. Hayward be terminated as an employee. Mr. Floyd's report was presented to the School Board at its January 16, 1986, meeting. A copy of the report was also provided to Mr. Hayward. By letter dated January 17, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Floyd's report and Ms. Tucker's recommendation had been presented to the School Board meeting of January 16, 1986, and that the School Board would consider the report and recommendation at its February 4, 1986, meeting. The letter indicated that Mr. Hayward could attend the meeting to discuss the report and to present witnesses and other evidence. By letter dated January 30, 1986, Mr. Hayward responded to the School Board through his counsel. In a memorandum dated February 3, 1986, Ms. Tucker informed the School Board that she could not attend the School Board meeting of February 4, 1986, and restated her recommendation that Mr. Hayward's employment be terminated. At its February 4, 1986, meeting, the School Board decided to terminate Mr. Hayward as an employee of the School Board. This decision was reached after allowing counsel for Mr. Hayward to respond to the allegations concerning Mr. Hayward's operation of his school bus. In a letter dated February 13, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Hayward had been terminated from employment by the School Board and informed them of Mr. Hayward's right to request an administrative hearing to contest the decision. In a letter dated February 28, 1986, Mr. Hayward requested an administrative hearing to contest his termination from employment by the School Board. Mr. Hayward had started his bus in motion before all students on the bus were seated on other occasions before the December 4, 1985, incident. Several other complaints concerning Mr. Hayward's operation of his bus had been received in writing by Mr. Meyer prior to the December 4, 1985, incident. Mr. Meyer only investigated reports if the complaining party made a written report of the incident. No written complaints concerning the operation of a bus have been received by Mr. Meyer concerning any other driver. Two written complaints have been received about another driver but those complaints did not concern the safe operation of a school bus. One complaint received by Mr. Meyer was from Ms. Donna Ward, a secretary at Chapman Elementary School. The complaint concerned an incident witnessed by Ms. Ward on May 26, 1981. Ms. Ward heard persistent horn blowing outside the school and went outside of the front of the school to investigate. It was raining and the circular drive used to pick up children by parents and the school bus drivers was full of waiting cars and buses. Mr. Hayward's bus was out on the street near the entrance of the driveway and Mr. Hayward was blowing the horn. The cars in front of him could not move, however. Nor was the area exclusively for use by the school buses. Mr. Hayward had been told to arrive early to avoid difficulty getting his bus to the pickup point within the driveway. He had also been told that the driveway at the school was available for use by parents and not just school buses. After blowing the horn for approximately four to five minutes, Mr. Hayward drove the bus to the exit of the driveway. Mr. Hayward then began to back the bus into the driveway in front of another bus parked at the curb. As he did so, students began exiting the building. Ms. Ward grabbed one student who ran behind Mr. Hayward's backing bus and pulled him back onto the sidewalk. No one was behind the bus giving Mr. Hayward directions as he backed the bus into a school grounds area congested with students and vehicles. Mr. Hayward's actions in backing the bus were not safe. At some point along Mr. Hayward's bus route along Bluff Road, the road crosses a railroad track. Mr. Hayward must cross the tracks once on his way out Bluff Road, turn around after picking up students and cross the tracks again on his way back. On one occasion, Mr. Hayward failed to stop at the crossing on his way out Bluff Road even though the warning lights were flashing. On his way back along Bluff Road, Mr. Hayward did stop the bus but failed to open the doors of the bus before crossing the tracks. On another occasion, Mr. Hayward slowed the bus at the railroad crossing but did not stop until he was already on or very near the tracks and observed a crane moving on the tracks. Mr. Hayward then slammed on the brakes and backed the bus up. The sudden stop of the bus caused an elementary student to hit and bloody her nose. The warning lights on Bluff Road which Mr. Hayward had to cross malfunctioned on a number of occasions. On one occasion, the light malfunctioned while Mr. Meyer was riding with Mr. Hayward. Mr. Hayward followed safe procedures on this occasion. Although the lights did malfunction on occasion, they also worked properly on other occasions. Mr. Hayward has received two driving citations and accumulated six points on his driving record. These citations were associated with his driving of his personal automobile and not a school bus. On May 4, 1983, Mr. Hayward was cited for faulty brakes and received two points. On this occasion, Mr. Hayward was unable to stop his car because his brakes failed. He drove into the wall of a store. Mr. Hayward had the brakes repaired approximately two weeks before this incident. On June 15, 1984, Mr. Hayward was cited for speeding and received four points. None of the other seven school bus drivers of the School Board have received driving citations during the past seven years. Except for a few students in Carrabelle, no black students ride the school bus in Franklin County. This is because, although black students make up approximately thirty-five percent of the student population, they all live within one mile of their schools and only students who live more than one mile from their schools are provided bus transportation. Therefore, the route driven by Mr. Hayward included stops for only white students. Mr. Hayward was the only black bus driver ever employed by the School Board. Mr. Hayward was the President of the N.A.A.C.P. for Franklin County during 1984, and had been active in community affairs. Among the activities Mr. Hayward was involved in were the adoption of single-member districts for the School Board. The School Board ultimately approved single-member districting for Franklin County. None of the members of the School Board who took part in the decision to terminate Mr. Hayward's employment with the School Board were elected to the School Board after single-member districting was adopted. When Mr. Hayward first applied for his position with the School Board, he was told by Mr. Meyer that there was no vacancy. Mr. Hayward contacted the Franklin County Superintendent of Schools, Ms. Tucker, about what Mr. Meyer told him. After Ms. Tucker spoke with Mr. Meyer, Mr. Meyer gave Mr. Hayward an application and ultimately was hired as a bus driver. On May 3, 1985, a meeting was held between Mr. Hayward, Ms. Tucker, Mr. Fox, Ms. Rose McCoy, the Principal of Chapman Elementary School and two others. Ms. Tucker scheduled the meeting because of problems voiced by Mr. Hayward concerning the treatment of discipline referrals by the Principals and complaints concerning Mr. Hayward's treatment of students and the two Principals. Mr. Hayward identified four students as discipline problems during this meeting. None of the students involved in the December 4, 1985, incident were named as problem students by Mr. Hayward. Mr. Fox agreed to administer corporal punishment to one of the students named by Mr. Hayward at the meeting and offered to allow Mr. Hayward to witness the punishment. Mr. Hayward declined. There is a relationship between a school bus driver's ability to manage students and the safe operation of a school bus. A driver must be able to manage students. The most important consideration for a school bus driver is the safety and health of the driver's student passengers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a Final Order terminating Mr. Hayward's employment as a school bus driver for the School Board. DONE and ENTERED this 18th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0970 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 1. The first sentence is a summary of testimony and not a proposed finding of fact. See 42 and 45. The last sentence is not relevant to this proceeding. The number of black drivers "currently" employed is not relevant to this proceeding. 3-4 3. 3, 33 and 41. The fourth sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Summary of testimony and not proposed findings of fact. See 4, 9, 16 and 19. The weight of the evidence proved that the injury took place on December 4, 1985. 14. The first sentence is not Supported by the weight of the evidence. 9 15-17 and 20. 10-11 Not supported by the weight of the evidence. 5. Matthew Cramer was not good friends with the other three individuals. Not Supported by the weight of the evidence. See 35-37. 14-17 Not relevant. Not supported by the weight of the evidence. 43. The evidence failed to prove that a consent decree was entered as a result of Mr. Hayward's effort. 44. The evidence failed to prove, however, that the fact contained in the first sentence had any effect on the action taken by the School Board against Mr. Hayward. The last sentence is not Supported by the weight of the evidence. Hereby accepted. The second sentence is a conclusion of law. 22-25 These proposed findings of fact are irrelevant or not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. See 34. The last sentence is not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. The first paragraph is not supported by the weight of the evidence. The last paragraph is irrelevant. Hereby accepted. 29 18. Irrelevant. Conclusion of law. 32-33 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1, 4-5 and 13. The date of the incident was December 4, 1985 and not December 4 or 5, 1985. The last sentence is not supported by the weight of the evidence. 2 6. 3 5 and 7-8. 4 8 and 9. The evidence failed to prove that medical attention was required. 5 10 and 11. 6 12. 7 7. 8 32. 9 7. 10 15-17. 11 18 and 20. 12 22 and 23. 13 23 and 25. 14 35 and 36. 15 46. 16 33. Mr. Meyer received two complaints about one other driver and not complaints about two other drivers. 17 3, 47 and 48. 18 2. 33, 38 and 40. The last sentence is true but not relevant because the evidence failed to prove why Mr. Hayward was placed on disciplinary probation. The next to the last sentence is not supported by the weight of the evidence. 34. The first paragraph was not supported by the weight of the evidence. The evidence concerning this paragraph was hearsay. The fourth paragraph is irrelevant. 24 and 28. The last sentence is not relevant. 22 28 and 29. 23 Hereby accepted. COPIES FURNISHED: Van P. Russell, Esquire Watkins and Russell 41 Commerce Street Apalachicola, Florida 32320 Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Gloria Tucker, Superintendent Franklin County School Board 155 Avenue E Apalachicola, Florida 32320 Martin B. Schapp Administrator 319 West Madison Street Room 3 Tallahassee, Florida 32399
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
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
Findings Of Fact At all times pertinent to the issues herein, Respondent, School Board of Hillsborough County, operated a school bus system for students attending the public schools run by it within the county. The program was and is administered by several different route coordinators who are authorized to hire the drivers for the buses operated on their routes. In September, 1985, Petitioner, William D. Gibbs, who had previously been working as a pipe fitter since 1972, applied for employment as a school bus driver in the Brandon area, for which Rosa Irene Barrow was the route coordinator. Mr. Gibbs could no longer perform the duties of a pipe fitter as a result of a work-related injury to his left knee incurred in 1984, but was fully capable of operating a bus. When he determined he could no longer work at his former trade, he began looking for other work, with a government agency, preferably, because of the benefits offered by most governmental employers. He applied for several county jobs and with the School Board with whose Job Line he kept in frequent contact. Mr. Gibbs submitted his written application for employment as a school bus driver in September, 1985, at which time he spoke with Ms. Barrow, discussing with her all aspects of his qualifications for employment as a school bus driver. One of the matters they discussed was the need for the applicant to have an appropriate place to park the bus when it was not in use. Petitioner assured her he had plenty of room to park it on the 9/10 acre grounds of the day care center his wife operated. Though Ms. Barrow claims she told Petitioner she didn't think a day care center was an appropriate place to park a school bus, it is found she made no comment to him regarding the suitability of the site he mentioned, nor did she give him any idea of whether or when he might be hired. Instead, she set up the required tests he had to take. Petitioner took and passed the required tests and was certified as qualified to drive a school bus. Several days later he spoke with Ms. Barrow who told him that they were not hiring drivers at that time, but to call back later on. Just about this same time, Mr. Gibbs also put in an application with the County's public bus system, (Heartline), and went to work there in January, 1986. He successfully completed his training program in February, 1986, and was assigned to work driving a bus, but quit before his probationary period was up because of abuse he received from his passengers and the danger of bodily harm. He was also accused of a fare impropriety but was later exonerated when the accusation against him was found to be based on a case of mistaken identity. When Mr. Gibbs left Heartline, he went to work for his wife at the child care center she operates, and still works there performing maintenance, running errands, working at the reception desk, and, periodically, driving the center's van. In May, 1986, he had another conversation with Ms. Barrow about his application for employment as a driver. Again he was advised that the county was not taking on any new school bus drivers. During the course of their conversation, Ms. Barrow asked Petitioner why he wanted to drive a school bus. Reportedly, she stated it was her experience that most men were not temperamentally suited to drive a school bus because they were over-aggressive in discipline. Ms. Barrow denies she said this, claiming that since he owned and operated a day care center, she felt he would be more likely to know what the problems were in dealing with children. If she did make that or a similar comment, however, she claims it was because the job is not for a lot of people and she tries to tell all her applicants that. In light of this and her testimony at hearing that she discusses with potential drivers the kind of behavior they can expect from the children, and the other less desirable working conditions which can be encountered, it is found that a comment such as is alleged by Petitioner could well have been made. In that regard, however, Petitioner admitted at hearing that the remark, instead of referring to "most" men, might have been "some" men. On this occasion, however, no judgement or other comment was made regarding Petitioner's proposed bus parking spot. After this second conversation with Ms. Barrow, Mr. Gibbs became suspicious of possible discrimination because of her comment about male temperament, but he had no real proof of that and did nothing. She again told him to call back in September, 1986, and when he did, he was met with the same response: they were not hiring but to call back in six months. When he did, he was again put off and told to call back at the end of the school year. This routine continued until he called in January, 1988, and spoke with Ms. Strickland, the route coordinator for another area, thinking chances of his success might be greater with another supervisor. When he identified himself and told her why he was calling, she told him that his September, 1985 application was no longer any good: employment applications were kept open only for 30 to 60 days, after which they are retired. Petitioner's application was kept on file, however, and was presented at the hearing in April, 1990. When, during discovery prior to hearing, Petitioner's counsel requested copies of all applications for driver positions from 1985 to the present, he was furnished with only those from 1989 to the present with the comment that all others were not available. Inquiry of administrative officials at the Board offices revealed such records were kept only one year before being retired and, apparently, no one could indicate where or under what conditions older documents were maintained. When Mr. Gibbs was told about his application by Ms. Strickland, feeling certain he was being discriminated against, he immediately filed his complaint of discrimination. Petitioner met, in his opinion, all the requirements to be a school bus driver. He lived in the area in which he proposed to drive; he was certified as a school bus driver; he passed all the tests given him; and, as he saw it, he had an appropriate place to park the bus. It is on this issue of an "appropriate" place to park that this matter turns. Ms. Barrow felt at the time of Petitioner's application, and believes to this day, that a child care center, with the frequency of ingress and egress traffic, and the presence of many young children, is not an appropriate place to manipulate and park a large bus. Even though she was initially mistaken as to the actual site in question, she had the correct site checked out by Mr. Saffold, her driver trainer and accident investigator, and checked it herself several times. Mr. Saffold, after numerous visits to the site, found it to be not appropriate for parking a bus due to the number of trees on the site and the other cars routinely parked there. In addition, there is a circular drive which gives little room for maneuvering. Ms. Strickland also went out to see Petitioner's site, and she, too, found it unacceptable for much the same reason cited by Mr. Saffold; the trees, the lack of maneuvering room, and the on- property traffic due to pick ups and drop offs. Ms. Barrow concluded that a day care center, with its heavy traffic of people coming and going, was not an appropriate place to park a 35 foot bus. She told Petitioner that he should find an "appropriate" parking place within a reasonable distance of his residence, such as at a church or other off-street facility. There is no central bus parking compound at Ms. Barrow's facility. There is, as Petitioner contends, ample space at the side of his facility to physically locate the bus when parked. That is not the basis for disapproval. The appropriateness of the site is, however, and the question of appropriateness is a subjective one with the decision on what qualifies and what does not left up to the route coordinator. Ms. Barrow, the coordinator for the area in which Petitioner applied, concluded the site proposed by Petitioner to park the bus was not appropriate. In this conclusion she was joined by another coordinator, Ms. Strickland, and a driver trainer and accident investigator, Mr. Saffold. In light of the evidence presented and the considerations pertaining, it cannot be said her conclusion was wrong. Within the Board's school bus operation, there are 12 route coordinators, none of whom are male, who supervise a total of in excess of 700 drivers. Within Ms. Barrow's area, she supervises 67 drivers, each of whom has between 2 and 4 daily runs. Each run is made up of 1, 2, or 3 schools. Drivers are hired, initially, as substitute drivers who fill in on an "as needed" basis for regular drivers. The substitute driver position is a part-time job which lasts for 10 instead of 12 months of the year. No set amount of working hours can be guaranteed. The average substitute driver works from 6.5 to 7.5 hours per day. Whereas regular drivers are guaranteed 6 hours work per day, substitute drivers get no guaranteed minimum and are paid only for the hours they actually drive. Substitute drivers may remain in that category for between 6 and 18 months. Regular drivers are hired from the ranks of substitute drivers. Driver criteria include a good driving record; completion of the 10th grade; and an "appropriate" place to park the bus. Board personnel consider the most critical of these to be the place to park the bus. It must be a safe, off- street location, and the problem of finding a suitable parking space is becoming more and more difficult. Of the 67 drivers under Ms. Barrow's supervision, 3 are male. During the 9 years she has served as a route coordinator, she has hired 3 or 4 male drivers. However, she gets very few male applicants and this is the basis for the low number of drivers. Ms. Strickland has 6 or 7 male drivers out of 68 full time and 11 substitute drivers. Of the applicants for drivers in her area, 3% to 4% are male. Mr. Saffold, who has worked for Ms. Barrow since March, 1981, has never found her to in any way discriminate against men. As a part of his job, he periodically goes out with the route coordinator to check on proposed parking sites for buses. On the 3 or 4 times he has done this, he has found the site to be inappropriate twice. Petitioner claims that the inappropriateness of his proposed parking site was not made an issue until after his complaint was filed. According to Mr. Saffold, it has been the continuing policy in Ms. Barrow's area to check the proposed parking site before giving the required tests to driver applicants. In the instant case, this was not done. Petitioner claims reimbursement for back pay. He filed his charge of discrimination on April 4, 1988. Any back pay due would then begin to accrue no earlier than April 3, 1986, two years prior to the filing of the charge. After being told there was no employment available for him at Respondent's Brandon bus barn, Petitioner took a job with the city bus line, Heartline, in January, 1986 and resigned in June, 1986. He earned $5.25 per hour during the entire time he was so employed. After leaving the city, he went to work at his wife's day care center where he earned $7.00 per hour and is still employed at $7.20 per hour. The job at Heartline, driving a city bus is clearly equivalent to that of driving a school bus. His duties at the day care center include periodic bus driving but is primarily of an administrative or maintenance nature and cannot reasonably be considered "substantially equivalent" to those of a school bus driver. Petitioner admits that after leaving Heartline, he did not inquire about or apply for other driving positions. Petitioner has requested attorney's fees and costs in the amounts of $22,500.00 and $1,471.85, respectively. Attorney LaPorte, testifying on behalf of Petitioner, indicated the Respondent's hourly fee of $150.00, when considered in light of his extensive experience and the considerable amount of research and preparation required herein, was not unreasonable. There was no evidence on the part of the Respondent to dispute Petitioner's claim and it is accepted as proven. The costs detailed in the exhibit attached to Respondent's post-hearing memorandum is also considered reasonable and is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition For Relief, alleging unlawful discrimination on the basis of sex, be dismissed. RECOMMENDED this 1st 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 1st day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2016 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted two Proposed Recommended Orders - a long form and a short form. Both contain proposed findings of fact which are identical. The difference in Proposed Orders relates to the legal discussion which pertains to the proposed Findings of Fact. Proposed Findings 1 - 12 related primarily to procedural matters leading up to the final hearing. Finding of Fact 13 consists of several paragraphs which, for the purposes of this discussion, shall be re-numbered 13(a) through 13(m). 13(a). Rejected as not a proper Finding of Fact. The "concession" regarding liability appears to have been a part of proposed settlement negotiations and cannot be considered binding as to Findings of Fact after hearing which are based on evidence presented at the hearing. Attorney's fees are considered reasonable. 13(b). Accepted and incorporated herein. 13(c). Accepted and incorporated herein. 13(d). Accepted. 13(e). Accepted and incorporated herein. 13(f). Accepted and incorporated herein. 13 (g). Accepted and incorporated herein except for last sentence which is a restatement of evidence and not a Finding. 13 (h). Statistical information contained is accepted and incorporated herein. The balance, relating to the establishment of a prima facie case of discrimination is not a Finding of Fact, and is not supported by the evidence. 13(i) Rejected. 13(j). Accepted as to the facts but rejected as to Petitioner's conclusions as to the foundation for an adverse inference. 13(k). Accepted. 13(l). Accepted. 13(m). Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. & 11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein to establish that Ms. Barrow made some comment about "some" or "most" men not being emotionally suited for drive a school bus. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert H. Mackenzie, Esquire 17 McKendree Dr. Wesley Chapel, Florida 33544 Ronald W. Fraley Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 P.O. Box 639 Tampa, Florida 33601 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN 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 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
Findings Of Fact The School Board of Pasco County ("Respondent") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). At all times material to this case, the Respondent has had a nondiscrimination policy and a policy prohibiting sexual harassment in effect. The policies are provided to all employees, including the Petitioner, upon hiring, and are posted throughout the workplace. Denise E. Hoedt ("Petitioner") at all times material to this case was a bus driver employed by the Respondent. As of the date of the hearing, the Petitioner was on worker's compensation leave. There is no evidence that the worker's compensation leave is related to the allegations at issue in this case. When the Petitioner was initially employed by the Respondent she was assigned to a regular bus route and was stationed in the "Northwest Garage" unit of the Respondent's transportation system. After having been employed for a sufficient period of time, she was provided with a contractual right to choose her route. She chose to transport exceptional education (ESE) students. As an ESE driver, the Petitioner's immediate supervisor was Jacqueline Dennis. Ms. Dennis did not work in the same garage from which the Petitioner was based. The Petitioner has been involved in a continuing series of grievances against Mr. Valentine Gallas, a "Route Specialist" for the Respondent. The grievances, filed prior to the complaint to the Florida Commission on Human Relations at issue in this proceeding, have been directed towards her discontent with work assigned to her by Mr. Gallas. Although Mr. Gallas was not the Petitioner's immediate supervisor, as a Route Specialist located in the Northwest Garage, he had supervisory authority over the Petitioner, as did Joanne Snodgrass, another Route Specialist in the same facility. One of the prior grievances was directed towards his request that she assume responsibility for opening a large metal gate at the entrance of the bus storage compound. The complaint was resolved by an agreement that she would not be asked to open the gate. Upon being requested by a different official to drive a later route and take responsibility to close the gate, the Petitioner complied with the request. Although she did not continue to drive the later route, there is no evidence that her decision was related to the request regarding gate closure. Another grievance centered on Mr. Gallas' directive that she drive a second bus run after she had completed her initial run. Mr. Gallas apparently did not provide the Petitioner with an opportunity to use the rest room prior to the second run. The Petitioner filed a grievance about the matter which was resolved by an agreement that, prior to being asked to take an additional route, she would be provided with a rest room break. The Petitioner asserted that because Mr. Gallas assigned her to a bus with a poor driver's seat, her back was injured. There is no credible evidence to establish that the seat caused or contributed to the claimed back injury. The Petitioner suggested that the clock in the bus driver's lounge was tampered with and resulted in her being reprimanded for tardiness. There is no credible evidence that the clock was intentionally tampered with to cause the Petitioner to be reprimanded. There is no evidence that any of the prior disputes between the Petitioner and Mr. Gallas were related to the Petitioner's gender or national origin, or were a form of sexual harassment of the Petitioner. When the Petitioner was driving a regular bus route, Mr. Gallas was responsible for her work assignments. When she began to drive an ESE route, she was no longer directly responsible to Mr. Gallas. In January 1993, the Petitioner, via a union representative, contacted school board officials and voiced her dissatisfaction with Mr. Gallas' alleged behavior. Late in January 1993, the Petitioner, accompanied by the union representative, met in an interview with the school board's personnel investigator. At the interview, the Petitioner stated that she believed she had been discriminated against on account of her gender and ethnic origin, and that she had been subjected to sexual harassment by Mr. Gallas. During the interview, the investigator attempted to obtain allegations of specific conduct, but other than as stated herein, the Petitioner was unable to offer such allegations. Although during the interview, the Petitioner alleged that Mr. Gallas had made derogatory comments regarding her ethnic origin and her weight, the only specific incident of which the Petitioner spoke was Mr. Gallas' alleged remark to her, "Oh, a Cuban." She offered no context for the remark. There was no specific remark regarding weight disclosed during the interview. The Petitioner also alleged that subsequent to Mr. Gallas' purchase of beverages for a group of bus drivers, he had repeatedly said she "owed him one" in a manner which the Petitioner interpreted as sexual. The remark continued until such time as the Petitioner purchased a beverage for Mr. Gallas. Further, the Petitioner alleged that in November 1992, Mr. Gallas came into the bus drivers' lounge and handed her an offensive written statement regarding intercourse which she interpreted as a request for sex. The investigator inquired as to whether Mr. Gallas had touched the Petitioner. She replied he had not. There was no mention of any other alleged inappropriate activity by Mr. Gallas towards the Petitioner. At the conclusion of the interview, the investigator expressed her concern about the serious nature of the charges. She assured the Petitioner that there would be no retaliation for the report of the complaints. She noted that the findings of the investigation would be confidential and requested that the Petitioner refrain from discussing the allegations pending the investigation. The investigator began her inquiry the day after meeting with the Petitioner. A meeting was scheduled with Mr. Gallas and with other persons who were aware of Mr. Gallas and the operation of the Northwest Garage. As to the investigator's request that the Respondent refrain from discussing the matter, the Petitioner failed to comply with this request. The matter became fodder for discussion in the workplace. A petition was initiated by several employees on Mr. Gallas' behalf. The Petitioner attempted to initiate her own petition drive without success. The matter was viewed by some coworkers as an attempt by the Petitioner to have Mr. Gallas' employment terminated. The investigator for the Respondent viewed the Petitioner's allegations with skepticism due to the "vagueness" of the specifics. The failure of the Petitioner to comply with the request to keep the matter confidential during the investigation did little to alleviate the investigator's initial concerns about the Petitioner's credibility. Despite the continuing controversy, the school board attempted to complete its investigation of the matters about which the Petitioner had complained. In an interview with the investigator, Mr. Gallas denied the charges. He stated that the remark regarding her origin occurred in the context of a discussion between the Petitioner and another driver overheard by Mr. Gallas, at which time the remark was made. He denied making any reference to her weight. Although acknowledging that he had seen the "intercourse" card in the garage, he denied having handed it to her. He denied any sexual intent in the "owe me one" remark. Other interviews were conducted with other persons who are knowledgeable about the operations of the Northwest Garage and Mr. Gallas' employment there. The investigator was unable to substantiate the allegations. Based on a review of the Petitioner's interview and allegations, Mr. Gallas' denial, and the inability to find further substantiation for the complaints, the investigator determined that there was no reasonable cause to believe that the complaints were credible. After the investigation and determination were completed, there was a time delay in providing notification of the determination to the Petitioner. The evidence establishes that the delay was not an attempt to deprive the Petitioner of any contractual or legal right but was due to nothing more than clerical error on the part of the personnel investigator. There is no evidence that there was any harm to the Petitioner related to the delay. In May 1993, the Petitioner filed the complaint with the Florida Commission on Human Relations (FCHR) which is at issue in this proceeding. As identified in the FCHR complaint, the Petitioner's allegations are addressed as follows: The November 1992 "intercourse" card incident-- The Petitioner asserts that in November 1992, as she was seated with two other bus drivers in the driver's lounge, Mr. Gallas entered the lounge, walked to the table where the Petitioner and her coworkers sat, and handed a card titled "intercourse" to the Petitioner. The card was an offensive attempt at humor and included a sexual invitation. Of the two coworkers at the table, only one saw the card. The Petitioner refused to permit the other coworker to see the card. All of the women testified at the hearing. Although the Respondent presented the investigator's recollection of Mr. Gallas' denial of the incident, Mr. Gallas was not called by either party to testify at the hearing. The testimony of the two drivers who were at the table when the incident occurred and who testified at the hearing substantiates the Petitioner's allegation. There is no credible evidence that prior to her January 1993 complaint about the incident, the Petitioner discussed the matter with any other person. The evidence fails to establish that Mr. Gallas' behavior regarding the "intercourse" card incident, although offensive and inappropriate, caused the Petitioner difficulty in performing her job duties or any other harm or injury. Offensive touching of the Petitioner by Mr. Gallas-- The Petitioner asserts that Mr. Gallas occasionally would stand too close to her and that on one occasion, he brushed against her breasts in passing her. There is no evidence that, prior to the filing of the FCHR complaint, the Petitioner had ever complained about unwarranted or offensive touching by Mr. Gallas. Upon direct inquiry by the school board's personnel investigator, the Petitioner denied that she had been touched by Mr. Gallas. The assertion is not supported by credible evidence. Mr. Gallas' sexual requests of the Petitioner-- There is no credible evidence that Mr. Gallas made any verbal sexual requests of the Petitioner. The only incident which may be viewed as a sexual invitation relates to the "intercourse" card addressed previously in this Recommended Order. The Petitioner "owed" Mr. Gallas-- The evidence establishes that at a luncheon attended by coworkers, Mr. Gallas purchased beverages for the group and made a statement to the effect that the recipients "owed him one." Mr. Gallas would occasionally repeat his "you owe me one" statement to the Petitioner. There is no evidence that the statement was made in a sexual manner or that such was intended by Mr. Gallas. Eventually, the Petitioner purchased a beverage for Mr. Gallas, stating "now I don't owe you one." After being bought a drink, Mr. Gallas no longer made the remark. Verbal slurs about the Petitioner's national origin-- The Petitioner is of Mexican, Spanish and Cuban origin. The Petitioner asserts that on one occasion, she became embroiled in an argument with Mr. Gallas during which he remarked, "Oh, You're nothing but a Cuban." There is no other evidence to support her assertion. The evidence is insufficient to establish that Mr. Gallas made such remarks to other employees or that such conversation was typical of him. The assertion is not credible. Terms and conditions of her employment-- The Petitioner asserts that the "terms and conditions' of her employment were different from other bus drivers with responsibilities similar to hers. The evidence fails to support the assertion. Drivers transporting ESE students generally have fewer students to transport than drivers of regular routes. It is possible that an ESE driver may transport only one or two children. ESE drivers often complete their routes before drivers of regular routes. Because the Petitioner was responsible for transportation of ESE students, her route was often completed earlier than other bus drivers. ESE drivers who have completed their routes may "stay on the clock" in which case they may be asked to provide assistance in clerical tasks or to complete other bus routes. In the alternative, drivers may "punch out" and leave. Additional work is assigned to drivers by the Route Specialist in the garage from which the drivers are based. Mr. Gallas was the Route Specialist in the garage from which the Petitioner was based. The Petitioner frequently remained on the clock and was accordingly assigned additional work to do. There is no evidence that any drivers who remained "on the clock" were treated any differently that was the Petitioner. On one afternoon, the Petitioner, suffering from back pain, returned from her route and laid down in her bus. Mr. Gallas came onto the vehicle and told her that she needed to be working. He suggested that she could be made to sweep the bus compound if she did not find other duties to complete. The evidence fails to establish that the Petitioner, who was on the payroll at the time she was resting in her bus, informed Mr. Gallas that she was not feeling well. The evidence fails to establish that Mr. Gallas' actions upon discovering the Petitioner at rest in her bus were related to her gender, national origin, or were a form of sexual harassment. There is no evidence that other drivers were permitted, while on duty, to rest in their busses. As previously addressed, on one occasion, Mr. Gallas directed the Petitioner, immediately upon her return from her normal bus run, to perform additional transportation duties. Mr. Gallas did not provide the Petitioner with an opportunity to use the rest room before beginning her second run. Subsequent to her complaint to appropriate authorities, Mr. Gallas was directed to permit the Petitioner to use the rest room before assigning additional responsibilities to her. Although Mr. Gallas' lack of concern about the Petitioner's personal needs was inconsiderate, the evidence fails to establish that the incident was related to gender, national origin, or were a form of sexual harassment. The Petitioner also asserts that other drivers or their spouses are permitted to bring personal vehicles into the bus compound and that she was not. The evidence fails to establish that other drivers or their spouses are routinely permitted to bring personal vehicles into the compound. The Petitioner complained that during a heavy storm one day, her husband came into the compound to pick her up and was asked to take his vehicle back outside the compound. On that day, Mr. Gallas offered to walk the Petitioner with an umbrella to her car but she declined. The Respondent's inquiry into the January 1993 grievance-- The Petitioner asserts that the school board's inquiry into her January 1993 grievance was incomplete and that the determination that the grievance was unfounded was inappropriate. The evidence fails to support the assertion. The greater weight of the evidence establishes that the Petitioner's complaints, as they were communicated to the school board, were as fully investigated as was possible. The Petitioner's complaints to the Board did not include allegations related to unwarranted touching, according such allegations were not investigated. Further, the investigation was hampered by the spread of rumor and innuendo throughout the workplace regarding the Petitioner's sexual harassment allegations. Although the evidence is not entirely clear as to where responsibility lies for the generation of the rumor and internal bickering, school board personnel involved in the investigation specifically directed the Petitioner to refrain from discussing the allegations pending the board's investigation. As previously stated, she failed to comply with this request. Coworkers of the Petitioner were also involved in discussion about the pending investigation. At that point, the workplace appears to have become divided into factions and the board's investigation was compromised. The evidence establishes that the board's investigation of the Petitioner's grievance was conducted appropriately and that persons with direct knowledge related to the allegations (including Mr. Gallas who was inexplicably not called by either party to testify at the hearing) were contacted and interviewed. Although the investigation became compromised and was completed prematurely, there is no evidence that based on the information obtained by board personnel, the board's determination that the grievance was unfounded was outside the authority of the board or unsupported by the information which the board had obtained The Petitioner seeks to be "reimbursed for all the pain and suffering I have endured...." The evidence fails to establish that such an award is appropriate. The Petitioner offered no evidence related to "pain and suffering" or which would establish that such injury, if present, is related to employment conditions. The Petitioner also seeks to be reimbursed "for any and all money which was used to seek legal consultation." There is no evidence that the Petitioner, who has represented herself throughout this proceeding, has incurred any expenses related to legal consultation regarding this complaint; therefore such an award is not appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed in this case. DONE and RECOMMENDED this 9th of June, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6652 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by the greater weight of credible and persuasive evidence. Proposed finding of fact paragraph six continues for approximately seven pages and consists largely of recitation of conflicting testimony. The testimony has been reconciled as indicated in this Recommended Order. The proposed finding is rejected as subordinate, unnecessary, immaterial and not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 8-9. Rejected, subordinate. 10-16. Rejected, unnecessary. This unnumbered proposed finding consists of "examples of inappropriate sexual behavior" by Mr. Gallas and is treated as follows: Rejected as not supported by the greater weight of credible and persuasive testimony: a. Rejected as irrelevant: c, b, e. Rejected as immaterial: d, f, g, h. This proposed finding consists of "examples of inappropriate sexual behavior involving Mr. Valentine Gallas and Ms. Denise Hoedt" and is treated as follows: Rejected, there is no credible evidence that the offer of an umbrella was "inappropriate sexual behavior b, k. Rejected, immaterial l, m, n, o. Accepted as modified. Remainder is rejected as not supported by the greater weight of credible and persuasive evidence. Rejected as not supported by greater weight of credible and persuasive evidence: a, g. Rejected, subordinate: d, h, i. Rejected, irrelevant: f. Rejected, not supported by the greater weight of credible and persuasive evidence. There is no credible evidence that the Petitioner or her husband have been subjected to restrictions regarding personal cars within the bus compound which are not generally applicable to all drivers, except when specific circumstances require otherwise. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to Pyles' attendance at meeting, unnecessary. Rejected as to note taking by the investigator, unnecessary. 12-13. Rejected, unnecessary. 16-18. Rejected, subordinate. 23-33. Rejected, subordinate, unnecessary. 34. Rejected as to ulterior motives of Petitioner, unnecessary. COPIES FURNISHED: Thomas E. Weightman, Superintendent Pasco County School System 7227 Land O' Lakes Blvd. Land O' Lakes, Florida 34639-2805 Denise E. Hoedt 11605 U. S. Highway 41 Spring Hill, Florida 34610 Mark Graves, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Whether just cause exists to terminate Ms. Ivey from her employment with the Pinellas County School Board.
Findings Of Fact In 2005, Ms. Ivey was hired by the School Board to work as a school bus driver (bus driver). The position of school bus driver is covered by the 2012-2015 Collective Bargaining Agreement between the School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). One of the many requirements to operate a Pinellas County school bus is to undergo a medical/physical examination every year. Among the physical requirements, bus drivers are to maintain at least 20/40 vision in each eye (with or without corrective lenses). On Wednesday, January 23, 2013, Ms. Ivey underwent her yearly physical examination (exam). As a result of this exam, Ms. Ivey's "Work Status" was "PE on hold," meaning Ms. Ivey was not able to work as a bus driver until some corrective measures involving her eyesight were obtained. Ms. Ivey completed her morning bus routes prior to her exam on January 23. After her exam, Ms. Ivey called in sick and did not complete her afternoon school bus routes. On January 24, Ms. Ivey completed both her morning and afternoon bus routes without incident. However, she took sick leave for the remainder of January 2013 (five work days). Ms. Ivey's first day back from her sick leave was February 4, 2013. Each school bus is equipped with a global positioning system (GPS) monitoring device. Once the school bus is turned on the GPS automatically records the school bus position every 30 seconds. The GPS also records other activities that the school bus performs, e.g., when the amber caution lights are turned on or off, when the red stop lights are turned on or off, when the entrance door opens or closes, etc. Because of the cost of fuel, the School Board's policy is that no school bus idles for more than five minutes. If a bus must idle for more than five minutes, the bus driver is required to turn off the bus until it needs to move. Each school bus is required to stop at each assigned bus stop whether or not a student is present. This is to maintain the published schedule for subsequent school bus riders. Each school bus is also equipped with a two-way radio for constant communication with Petitioner's transportation dispatchers. In the event of an incident (or accident), there is an additional emergency channel for use by the dispatcher and the affected school bus driver. Prior to each school year, school bus drivers are provided training in how to handle an incident (or accident). When an incident occurs, the driver is to immediately contact the transportation dispatcher, remain at the scene of the incident, ensure the safety of the students, and cooperate fully with the investigation. The bus driver is to complete an incident report and turn it in to the transportation division before the end of the incident day. The school bus that Ms. Ivey drove on February 4, 2013, was equipped with the two-way radio and the GPS. Ms. Ivey's published/authorized school bus route (for the middle school pick-up) started at 8:15 a.m. each morning when she was to pick up her riding assistant, Courtney McClendon,3/ at 102nd Avenue and Seminole Boulevard. This stop was in a large parking lot, close to a Little Caesar's restaurant (restaurant). The second bus stop, where the first student was to be picked up, was located at 97th Street North and Lake Seminole Drive East (corner location). Without the School Board's permission or authorization, Ms. Ivey unilaterally changed her school bus route to begin with the student pick-up at the corner location. On February 4, Ms. Ivey began her middle school bus route at the corner location. According to the GPS, Ms. Ivey entered the corner location neighborhood at 8:32 a.m., and could not have been at the designated corner location bus stop at 8:18 a.m. The student rider was not at the corner location when the school bus arrived. There was no indication, via the GPS, that either the amber caution or red stop lights were activated for this stop, or that the entrance door opened or closed to allow a student to enter the bus. Ms. Ivey turned the school bus onto 97th Street and stopped at the red light at 102nd Avenue (stop light corner). As Ms. Ivey was looking left (in order to turn right), she heard a knock on the school bus door, but did not see the student. Ms. Ivey completed the right-turn onto 102nd Avenue West and then, in her right rear-view mirror noticed a student falling down. Ms. Ivey did not immediately stop the school bus, but drove to the restaurant approximately two minutes away. There, Ms. Ivey turned on her amber lights and opened the door for Ms. McClendon to board the school bus. While at the restaurant, Ms. Ivey radioed Petitioner's transportation dispatcher that she might have hit a student. Ms. Ivey left the restaurant and drove back to the corner location. Despite having a two-way radio on board the school bus and repeated attempts by the dispatcher to contact her, Ms. Ivey and the dispatcher failed to communicate again for over 45 minutes. Upon notification of the incident, the transportation dispatcher switched to the emergency frequency; however, Ms. Ivey stayed on the regular two-way radio frequency. Two transportation supervisors were immediately dispatched to investigate the incident at the restaurant, as this was the location where the incident was reported. Once they arrived, the supervisors were unable to locate the school bus, Ms. Ivey, or Ms. McClendon (the trio) at or near the restaurant. In an effort to locate the trio, the supervisors traveled to several more school bus stops, but only found students waiting for the school bus.4/ After searching for over 45 minutes, the supervisors finally located the trio at the corner location. At that time the transportation supervisors determined that the stop light corner location was where the incident actually occurred. One week after the incident, on February 11, Ms. Ivey completed and turned in the "DRIVER'S REPORT OF INCIDENT." Petitioner's field operations supervisor, Ms. Cross had to make repeated requests to Ms. Ivey to get her to turn in the report. On three separate occasions, Ms. Ivey was noticed to appear at the Office of Professional Standards to answer questions regarding the January medical issue and the February 4th incident. At the meeting on February 20, 2013, Ms. Ivey refused to answer questions about either matter. During the second meeting on February 28, shortly after the meeting began, Ms. Ivey asked to use the restroom, left the room, and never returned to complete the meeting. Although she was noticed for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey did not arrive for that meeting until after 3:00 p.m. During this third meeting, Ms. Ivey again refused to answer questions about either matter. Ms. Ivey's employment disciplinary history with the School Board is as follows: 02/08/10 Ms. Ivey received a "Conference Summary" for failing to correct performance deficiencies; 02/18/10 Ms. Ivey received a Conference Summary" for failing to comply with board policy, state law, or appropriate contractual agreement; 10/20/11 Ms. Ivey received a "Caution" for failing to comply with board policy, state law, or the appropriate contractual agreement and misconduct; 05/23/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; 12/15/12 Ms. Ivey received a "Reprimand" for failing to perform the duties of the position and failing to correct performance deficiencies; and 02/20/13 Ms. Ivey received a "Conference Summary" for failing to perform the duties of the position and failing to correct performance deficiencies. Despite repeated opportunities to provide her version of the events, Ms. Ivey declined to present her case in a manner that would warrant serious consideration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner terminate Ms. Ivey's employment as a school bus driver as a consequence of her repeated violations of School Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Ms. Ivey's termination from employment as a school bus driver. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2013.
