The Issue Whether Pinellas County School Board (Petitioner or School Board) has "just cause" to terminate Respondent's employment as a bus driver, due to violation of School Board Policies: 4140(A)(19), "Failure to Correct Performance Deficiencies"; 4140(A)(21), "Conduct unbecoming a board employee that brings the district disrepute or disrupts the orderly processes of the District"; and (3) 4140(A)(23), "Failure to comply with Board Policy, State law, or appropriate contractual agreement."
Findings Of Fact Petitioner is responsible for operating the public schools in Pinellas County School District and for hiring, firing, and overseeing both instructional and non-instructional "educational support" employees. Respondent has been employed by Petitioner as a regular bus driver and educational support employee, since April 1989. On the morning of January 15, 2010, Respondent commenced her morning elementary school route by picking up students to transport them to Eisenhower Elementary School. After completing the run to Eisenhower Elementary School, Respondent did not conduct an interior inspection of the bus, as required. As a result, a six-year-old child was left sleeping on the bus after Respondent left the school. While waiting to depart from the school grounds, the bus engine was not turned off, but, rather, it was left to idle. Respondent was in a hurry to leave Eisenhower Elementary School because she wanted to use the restroom. Although bus drivers are encouraged to use the restroom at the school, and it is considered a "best practice" to do so, Respondent thought she could cut some time off of her run and preferred to drive to the Mobile service station located at the corner of U.S. 19 North and Route 590 rather than use the restroom at the school. Once at the Mobile service station, Respondent stopped the bus parallel to Route 590 and went into the store. The restroom was occupied at the time, requiring her to wait. She testified that while she was waiting, she went out to the bus to close a window and then returned to the service station to use the restroom. Throughout this time period, the child was left unattended on the school bus. The bus was left positioned near a heavily-traveled area of Pinellas County during rush hour traffic, and the bus was left idling. Respondent denies that the bus was left idling while the child was unattended. Her denial, however, is not credible. If the engine, in fact, had been turned off as she claims, then the Child Reminder System would have caused the horn to blow, which she admits did not occur. According to Respondent, the reason that the horn did not blow when she turned off the engine was because she was "not 100 percent sure that it worked . . . during the run . . . [because she] could have hit a bump or something like that " Since 2005, all Pinellas County school buses are equipped with a device called a Child Reminder System. It is a safety device intended to enforce the bus driver's obligation to inspect his or her bus after each run. Once a bus driver turns off the engine, the horn is activated within 10-15 seconds, which forces the bus driver to walk to the back of the bus and hit a latch to de-activate the noise. Respondent acknowledged that checking the Child Reminder System is required as part of the pre-trip inspection. Respondent did not report any malfunction the morning of January 15, 2010. She stated that the Child Reminder System worked in the morning. In an effort to support her theory that the Child Reminder System may have been broken by 8:30 a.m. that same morning, Respondent claims that she has "over and over" turned in notes to the transportation department that the Child Reminder System was broken. The records from the transportation department do not support her claim. Rather, it is unrefuted that her bus--bus number 20909--was a brand new bus and never once, from the beginning of the 2009 school year through January 15, 2010, did Respondent file a request to repair or otherwise provide notification to the transportation maintenance department that the Child Reminder System was not working. The greater weight of credible evidence finds that Respondent left her bus idling at the school and at the Mobile service station. As a result, the Child Reminder System was never activated, causing additional danger to the sleeping child who remained undercover on the bus. After Respondent left the store, Respondent resumed her route and picked up several middle-school students. The sleeping child was discovered by a middle-school student, who notified Respondent. After several minutes, Respondent called the dispatcher to notify her of the situation. Respondent used her cell phone to call the dispatcher. The dispatcher directed Respondent to return to Eisenhower Elementary School with the child. Respondent denied that she used her cell phone, instead of the two-way radio, in an effort to avoid publicly broadcasting her error over the radio system. Respondent admitted that she is well aware that the use of a cell phone while driving a bus violates School Board policy and Florida law. Respondent stated that the use of her cell phone "would be easier," because the two-way radio was being used by other callers to report an accident. Respondent implied that its use was safe, because she was not actually driving on U.S. 19, but, rather, a service road adjacent to U.S. 19. Respondent subsequently changed her story, stating that she was not driving, but had pulled her bus to the side of the road. Respondent's rendition of the facts on this point is also not credible. The Digital Video Recorder (DVR) clearly showed that the bus was moving while Respondent was speaking with dispatch on her cell phone. It is also evident from the DVR recording that the radio transmission was not in use by speakers discussing an accident as claimed by Respondent. Respondent's employment is governed by the agreement (2008-2011) between the School Board and SEIU/Florida Public Services Union, Local 1220, an affiliate of Service Employee International Union (AFL/CIO) (hereinafter Agreement). The Pinellas County Transportation Department produces a "School Bus Driver Handbook” (hereinafter "Bus Driver Handbook"), which describes policies and procedures to be followed by all bus drivers. Respondent received a copy of the Bus Driver Handbook and acknowledged that she received and read it.
Recommendation Based upon the forgoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order holding that "just cause" exists for the termination of the employment of Respondent for violation of School Board Policy 4140(A)(19), (20), and (24) and the Agreement, as well as state law, and that Respondent should be dismissed from her position as a bus driver with the School District of Pinellas County. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2010.
The Issue Whether the Respondent, Andrew Lewis (Respondent), committed the violation alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Andrew Lewis, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, the Respondent was employed by the Petitioner and was assigned to teach and coach at Sebastian River Middle School. He has been employed at the middle school for over seven years. The Respondent has coached the boys' basketball team since his first year and has coached a co-ed soccer team for the past three seasons. All of the acts or omissions complained of in this matter occurred on September 15, 2008, during an athletic bus trip from the middle school to an athletic event in Okeechobee County. More specifically, the incident occurred during the return trip, a portion of which occurred after dark, when the bus was occupied by approximately 40 students, two adult chaperones, and the bus driver. The Respondent was one of the two coach chaperones. The allegations stemmed from the Respondent's failure to appropriately supervise the students on the bus. During his tenure with the Petitioner the Respondent has participated in dozens of bus trips with teams. This case is the sole allegation of wrong-doing against the Respondent. Prior to the allegations of the instant matter, the Respondent maintained an impeccable record. He is well-respected by his superiors. The Respondent is not charged with committing the assault on the student. The Respondent was unaware that an assault had occurred. The Respondent is charged with failure to supervise the students who committed an assault on another student. The incident occurred at approximately 8:00 p.m. after it was sufficiently dark on the bus to preclude a visual inspection of the rear portion of the bus from the front. The Respondent and another coach on the bus, John Kebbel, sat in the front of the bus behind the bus driver. The Respondent sat sideways in a seat directly behind the driver. Mr. Kebbel sat across from the Respondent and the two observed the students in the bus from their seats. Although Mr. Kebbel got up and walked back to check on the female students seated in the front portion of the bus on at least three occasions, the Respondent remained seated. Before leaving the Okeechobee site, the students were separated into two groups. The male students sat in the rear portion of the bus with the girls seated more toward the front of the bus. The instructions from the athletic director required that the Respondent and Mr. Kebbel keep the boys and girls separated. Additionally, the coaches were to defer to the bus driver regarding safety and conduct on the bus. Finally, the students were to be counted to assure that the number returning on the trip matched the number that traveled to the event with the team. With a few exceptions not pertinent to this matter, these instructions were followed. Mr. Kebbel got up from his seat and walked back to check on "his girls" to make sure they were not sitting with the males in the rear portion of the bus. He was preoccupied with making sure they did not fraternize during the trip. He was aware that inappropriate contact between the boys and girls might occur. The Respondent did not move to the rear of the bus to check on the males there. The Respondent did not ask that the lights be turned on in order to spot check what the males were doing. The Respondent did not ask the students to be more quiet. It is undisputed that the students were very loud. Additionally, the windows on the bus were open and presumably there was road noise contributing to the din on the bus. The bus driver did not require that the students be more quiet. Neither the Respondent or Mr. Kebbel asked the students to be quiet. The two teams on the bus, the Respondent's soccer team and Mr. Kebbel's girls' volleyball team, were in good spirits. The Respondent did not believe there was any reason for concern regarding their behavior on the bus. The bus stopped on the return trip at a McDonald's restaurant where the students were permitted to purchase and consume food. The students were instructed not to bring food onto the bus. Rather, all food was to be consumed at the stop with trash being put in its proper place (not brought onto the bus). Nevertheless, at least one student brought a pie box onto the bus. There is no evidence that the Respondent checked the students for food or trash when they re-entered the bus. In fact, two eighth grade males had the pie box in their possession in the rear portion of the bus. As part of some hazing or bullying effort, the two male eighth grade students held a sixth-grade male student down, pulled down his pants and underwear, and inserted the box between his buttocks. They attempted to pull the pants down on a second sixth grade male student but that individual successfully fought them off. The student and others cried for help during the assaults but no one responded to their cries. During these incidents, the noise on the bus was so loud that the Respondent did not realize something was amiss until the sixth grader on whom the assault was successful started throwing up. The Respondent believed the student to be sick. He did not know what had preceded the vomiting. The Respondent claimed that he continuously looked to the rear portion of the bus and listened for indications of improper activity yet he never asked that the students be more quiet, did not ask that the lights be turned on periodically, did not walk to the rear of the bus, and did not hear the cries for help from the students. The Respondent claimed he chose to sit behind the bus driver so that he could not be the subject of a false accusation of impropriety. There is no evidence that the bus was too full to allow the coaches to sit on a row between the male and female students. Clearly, they enjoyed a row to themselves in the front of the bus. It was too dark on the bus for the Respondent to see the rear portion of the bus clearly after the McDonald's stop. The Respondent and Mr. Kebbel were responsible for the athletic trip and were to assure that the students were properly chaperoned. The failure to appropriately chaperone students constitutes misconduct. The School Board took action to discipline the Respondent for failure to supervise the students on the trip and suspended him for two days without pay. The Respondent served that suspension but claims he did not fail to supervise the students. The Respondent seeks restitution of his pay and a clean performance record. The Respondent claims that the conduct of the eighth- grade students was an unfortunate incident that could not reasonably be expected. He claims that had he thought that such conduct were likely he would have taken immediate steps to intercede on behalf of the sixth graders. The Respondent's vantage point in the front of the bus did not afford him a clear line of sight. He did not see the students crawling over the tops of the seats in the rear of the bus. Further, he did not see students getting out of their seats and moving across the aisle in the rear portion of the bus. The parties stipulated there are no procedural challenges to the pre-suspension proceedings. See Joint Pre- Hearing Stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the imposition of the two-day suspension. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2009. COPIES FURNISHED: Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3395 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Garganese, Weiss & D'Agresta, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 G. Russell Petersen, Esquire G. Russell Petersen, P.A. 21 Royal Palm Pointe, Suite 200 Vero Beach, Florida 32960
The Issue The issue in this case is whether just cause exists to terminate Respondent, Robert A. Evans', employment with Petitioner, Pinellas County School Board (the "Board"), based on Evans' history of violations of employee policies, most recently and specifically, using his position to seek a personal relationship with the parent of a student. Evans is accused of violating the following Board policies: 4140-A (10)--Using position for personal gain/conflict of interest; 4140-A (21)--Conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district; 3140-A (22)--Misconduct or Misconduct in Office; 4140-A (24)--Failure to comply with board policy, State law, or appropriate contractual agreement; and 4362--Anti-Harassment.
Findings Of Fact The Board is the governing body responsible for hiring, firing and overseeing all employees in the Pinellas County School District. Specifically, the Board has responsibility for employees at the School, including educational support employees who provide services to the School. At all times relevant hereto, Evans was an educational support employee of the Board. Evans had worked as a school bus driver for the Board for 14 years. At the time of the incident, which is the primary focus of this administrative hearing, Evans was serving as a relief driver. That is, Evans would drive a bus route when the regular driver was sick or otherwise unavailable. Relief drivers are paid a higher hourly wage than regular drivers. On September 21, 2010, Evans had been assigned Route 879, relieving David Levering, the regular driver. The route included a number of stops before terminating at the School. The first stop on the route was at Anastasia Way and Cordova Way (the "Bus Stop"). When Evans arrived at the Bus Stop, a child, identified herein as "M.P.C.," got on the bus. M.P.C. had been escorted to the Bus Stop by her mother, A.E. Evans engaged in some sort of idle chat with A.E., including questions which she considered frivolous. For example, Evans asked A.E. if a nearby truck was for sale. A.E. thought Evans was acting oddly and had no further conversations with him. Evans did not drive Route 879 on the after-school run. On the following day, September 22, 2010, Evans was assigned to a different bus. That bus also terminated at the School. When Evans was at the school on September 22, 2010, he asked the assistant principal, Brennan, to do him a favor. Evans handed Brennan a small sealed envelope. He asked Brennan to give the note to an assistant on the bus for Route 879 and to ask the assistant to give it to a student, M.P.C. Brennan made some quick written comments on the envelope and then delivered it to the bus assistant as requested. Brennan did not know what the envelope contained. He believed it must have been something the student left on the bus. The note was dutifully transferred to the bus assistant and then to M.P.C., who gave the note to her mother, A.E. The note said in its entirety: 9-22/10 Hello I'm the bus driver. I picked up at your daughter's bus stop. We meet [sic] I would like to talk to you [telephone number] Mt. Vernon Elementary School Robert Anytime Evans contends that the purpose of the note was to make sure that M.P.C. got on the correct bus, at the correct bus stop, at the proper time. According to Evans, A.E. had complained to him on the morning of September 21, 2010, that the bus frequently arrived late or early at the Bus Stop. Evans says that he felt a duty to help M.P.C., notwithstanding the fact that he had never met her before and was only doing relief duty on September 21, 2010. According to the Transportation Department records, however, A.E. had only called a couple of times about the bus being late. Evans' explanation about the purpose of the note is not consistent with the facts and is not credible. When A.E. received the note, she was somewhat upset. felt as though Evans was coming on to her or making an improper proposition. She discussed the note with her boyfriend, but did not do anything about it initially. She just thought Evans was acting weird or inappropriate, because she had never asked him for assistance or discussed any problems with him. But she was not sufficiently upset to take further action at that time. On the following Monday, A.E. remembers the school bus coming toward the Bus Stop, but when the driver looked at her, he turned the bus down another street as if he were avoiding her. A.E. thought the driver, who she believed was Evans, was intentionally trying to punish her daughter because she (A.E.) did not respond to his advances. However, there was no evidence presented at final hearing that Evans was driving Route 879 on that Monday. According to the Board's manager of Transportation, Evans only drove Route 879 one time, September 21, 2010, so A.E. is obviously mistaken as to that fact. Nonetheless, A.E. decided to contact the School about Evans' actions, i.e., sending her a note and skipping her daughter's bus stop on Monday.2/ She called the School to complain; Brennan took the call. Brennan described A.E.'s attitude and demeanor during the phone call as extremely irate. It was at that time that Brennan discovered the content of the note he had helped deliver. Brennan was embarrassed at his inadvertent involvement in the matter. Brennan then called the county Transportation Office to report the incident. The Transportation Office's written report concerning the incident is fraught with errors and cannot be relied upon to make a finding of fact, but it is clear Evans' behavior was deemed inappropriate. In fact, Evans admitted under oath that it was against the rules for him to give either a note or his cell phone number to A.E. Based upon the nature of the infraction, the School contacted its Office of Professional Standards to inquire as to what sanction should be imposed on Evans for his behavior. It was decided that termination of employment was the proper discipline based on Evans' history of problems. Taken into consideration by the Board were the following disciplinary actions against Evans during the two years preceding the incident: November 14, 2008--warning for using school bus for personal use; December 5, 2008--conference summary for not using most direct path to return to compound; May 4, 2009--letter of caution for excessive absences; October 20, 2009--conference summary for tampering with the bus camera and failing to properly compound the bus after use; December 16, 2009--letter of warning for failing to operate a shuttle in a timely fashion; January 29, 2010--letter of reprimand for not arriving at bus stops timely and improper, dangerous discharge of students from the bus; May 26, 2010--letter imposing a 15-day suspension without pay based upon failing to drop a student off at the appropriate stop, then failing to follow proper procedures to correct the situation; and October 26, 2010--conference summary failing to properly and completely cover his assigned route. At the time the Board discussed and considered this latest transgression, Evans had not completed his 15-day suspension from May 2010. Evans had been allowed to serve the suspension over a period of time, rather than all at once, and he had not completed the suspension as of the December 7, 2010, Board meeting. He had not completed the suspension at the time of the incident at issue in this proceeding. Evans is aware of and has been trained as to the requirements set forth in the School Bus Driver Handbook. As part of the training relating to the handbook, drivers are frequently told they should not contact parents of children on their bus. There is a protocol for putting parents in contact with the School or the Board. If a parent has a complaint, the bus driver is supposed to give them a card that contains contact information on it. The card has a line for the driver to write his or her name and the bus route. The driver is not expected to have, and is prohibited from having, further conversation with the parent. Rather, the driver is supposed to fill out a card, give it to the parent, and direct the parent to contact the School or Board directly. Evans contends that he provided a card to A.E.; she says she never received a card from Evans or from any other bus driver. It seems incongruent that Evans would give A.E. a card and also a personal note. His testimony in that regard is not credible. The Board has enacted bylaws and policies addressing, inter alia, action which can be deemed harassing in nature. Policy 4362 includes a prohibition against "[u]nwelcome sexual propositions, invitations, solicitations, and flirtations." Policy 4140 prohibits an employee from using their position for personal gain. The same policy also establishes a penalty for an employee's failure to correct substandard performance of their duties. An employee may also be dismissed for conduct unbecoming a Board employee or which brings the school district into disrepute. Employees also face disciplinary action for misconduct or failing to comply with Board policies, state law, or a contractual agreement. Under the Collective Bargaining Agreement between the Board and the employees' union, employees go through a system of progressive discipline. Under this standard, discipline may, but need not, follow the following progression: Verbal or written counseling or warnings; Written reprimands; Suspension without pay; and Dismissal. Evans had received verbal and written counseling, as evidenced by the conference summaries. He had received written letters of reprimand for his performance. Evans had been suspended without pay for 15 days. Dismissal, i.e., termination of his employment contract, was the next step in the progressive discipline rules. Evans' testimony that he was simply trying to ensure the M.P.C. got on the correct bus is not credible. It does not make sense that a relief driver would immediately become concerned about and attempt to intervene in a bus stop issue for an unknown student. Further, his own admission that he knew it was wrong to contact a student's parent makes his position even less plausible. Evans did not have the ability to do anything for A.E. about the bus schedule; the bus schedule is beyond Evans' scope of authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pinellas County School Board, upholding the termination of Respondent, Robert Evans', employment for the reasons set forth above. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011.
Findings Of Fact The Respondent, George Culbert, at times pertinent hereto, was employed by the School Board of Bay County. He was employed from November 1981 until March 4, 1987, when he was terminated by recommendation of a supervisor and by the School Superintendent. On April 8, 1987, the School Board took final agency action by terminating Mr. Culbert. The School Board of Bay County, the Petitioner, is a unit of local government charged, in pertinent part, with the hiring, termination and regulation of employment duties and practices of non- instructional personnel, such as the Respondent herein. The Respondent was employed by the School Board as a substitute bus driver from November 1981 until August 1982. From that date until his termination, he held a regular, full-time position as a bus driver with the School Board. During his tenure with the Board he received annual re- appointments to his position. He worked under a 10 month, non-instructional contract with the school board which covered the entire 1986-87 school year. He received annual, non-instructional performance evaluations for each year he was an employee of the school board. The Respondent consistently achieved performance standards on his evaluations and his overall rating was satisfactory. Although he was once disciplined for an episode involving a fight his son was in, while he was transporting his son and other children on a school bus, this infraction was of a personal nature and did not reflect on his skill or competence as a bus driver. During his period of employment from 1981 through March 4, 1987, he never received any disciplinary action regarding his performance as a bus driver. Prior to the instant situation, he had not been disciplined for any infractions of school board rules and policies, or state statutes. On February 25, 1988, bus driver Carol Nesmith was at a railroad crossing at State Road 261, a four lane highway. Her bus was stopped in the right hand lane as pertinent rules and her instructions required, to insure safe negotiation of the railroad crossing. While Ms. Nesmith and her bus was stopped (with students aboard) at the railroad crossing, following safety procedures required of bus drivers, the Respondent approached her bus from the rear. Instead of coming to a complete stop, he changed lanes and passed Ms. Smith's school bus at the railroad crossing, without coming to a complete stop. Mr. Culbert, as a regular practice, always approached a railroad crossing by reducing speed, coming to a stop, opening his window and door in order to look both ways to determine whether a train was approaching. Mr. Culbert testified that he religiously adhered to this practice. On the day in question, however, Mr. Culbert was running a trifle late in his schedule for taking children home from school on his bus because he had been delayed by a train at an earlier railroad crossing. Mr. Culbert, as well as Betty Gates, one of his supervisors, established that the required procedure for approaching and negotiating a railroad crossing could be performed quite quickly, depending upon the habits of the individual driver. There are no rules or regulations governing the time required to complete the "stopping and looking" procedures. Once a school bus comes to a stop, the other safety procedures can be performed in a few seconds and indeed a driver can look both ways when approaching a railroad crossing before coming to a complete stop. Mr. Culbert admitted that he followed these procedures quickly, but maintained that he came to a complete stop and followed the procedures as he normally did, not deviating from the normal practice. In any event, it is found that he failed to come to a complete stop and Ms. Nesmith testified that after he passed her bus, being concerned about the incident, she reported it to her Supervisor, Pat Holland. Ms. Nesmith knew of no other such incident. It was not until March 4, 1987, the day he was notified by his supervisor of his termination, that Mr. Culbert was notified of Ms. Holland's and Ms. Nesmith's concerns about the conduct that occurred on February 25. On March 4, 1987, Mr. Larry Daniels, one of his supervisors, asked him about the incident, whereupon Mr. Culbert denied that he failed to stop at the railroad crossing. In fact, he asked Mr. Daniels to conduct a full investigation of the matter and contact all the students who were in attendance at the incident (on his bus) at the time. As far as Mr. Culbert knew Mr. Daniels never conducted such an investigation. In any event, the Respondent was orally notified on that day of his termination and on the same day Mr. Daniels gave him a letter of termination. The basis for the termination was only the allegation involving his failure to stop at the railroad crossing. The following day, March 5, 1987, Superintendent Hall and Personnel Director Dick Lockner executed a standard Department of Personnel Termination Form regarding the Respondent. Later, on April 8, 1987, without prior notice or hearing, the school board took its final agency action and voted to terminate him. Thereafter, an Administrative Hearing was requested by the Respondent's Union Representative on May 13, 1987. Approximately seven months thereafter the matter was transmitted to the Division of Administrative Hearings for a formal proceeding. Mr. Malcolm Murphy was formerly the Supervisor of the School Board's Department of Transportation. Under his management the Department followed a "progressive discipline model." Under this policy employees were always notified upon their employment of the type of misconduct warranting discipline and the consequences of such misconduct. Mr. Murphy established that alleged violations of school board policy, rules or statutes, such as that involved in this case, would not warrant dismissal for a first offense under prevailing school board policy. The Respondent's offense in this instance is a first offense. Ms. Betty Gates, a former "District Specialist" for the board's Department of Transportation, confirmed that, while the conduct involved herein would be deemed somewhat serious, that dismissal would never be considered as appropriate for a first offense of this nature. It would be considered excessive for an employee who had never committed such an offense. She also established that it was commonly believed by employees, based upon the policy announced to them by the School Board's Department of Transportation, that they would not be dismissed for such an offense as this one, if it were the first such offense. Ms. Gates further opined that the action taken against Mr. Culbert was related to a personal animosity between he and Mr. Daniels, rather than to a violation of professional standards. In support of this belief she recounted an incident where Mr. Daniels had previously attempted to discipline Mr. Culbert for a matter totally unrelated to his employment relationship with the School Board. Mr. Murphy, in his position as Supervisor, could recall no incident of any employee being disciplined in such a serious manner for a first offense. Although he suspended another employee for a second offense involving violation of a rule or school board policy, he did not know of any instance where an employee was terminated even for a second such offense. It was thus unequivocally established that the School Board's policy toward its bus drivers was that no termination should occur for a first offense involving an incident such as failing to come to a complete stop at a railroad crossing, although that is a moderately serious occurrence and should not be allowed to be repeated.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the School Board of Bay County restoring the Respondent to his previous employment position and providing him with back pay and related benefits with interest thereon, at the legal rate, from the time he was wrongfully terminated on March 4, 1987. DONE and RECOMMENDED this 21st day of February, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 21st day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5501 PETITIONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as a discussion of testimony rather than as a Proposed Finding of Fact. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as irrelevant. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. and 15. Rejected as being immaterial in the de novo context of the instant proceeding. Rejected as irrelevant. Rejected as irrelevant. Accepted in part, but subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except that the witnesses' name was Nesmith and not Smith. Accepted. Accepted as to the first two sentences. The remainder of this Proposed Finding of Fact constitutes a discussion of testimony and is not a Finding of Fact. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. (There is no paragraph #14). Rejected as constituting a recitation of testimony and not a Proposed Finding of Fact. Accepted. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant and as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. COPIES FURNISHED: Franklin R. Harrison, Esquire 304 Magnolia Avenue Panama City, Florida 32402 Pamela L. Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Leonard J. Hall Superintendent of Schools Post Office Box 820 Panama City, Florida 32401
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue Whether Petitioner has “just cause” to terminate Respondent’s employment as a bus operator due to incompetency and/or misconduct, for violation of Subsection 1012.33(1)(a), Florida Statutes; and for violations of School Board Policies 5.02, 5.03, and/or 5.29.
Findings Of Fact The School Board of Lee County, Florida (Petitioner) is the duly-authorized entity responsible for providing public education in Lee County, Florida. Dennis Osterbrink (Respondent), has been employed with Petitioner since September 21, 2006. Respondent has maintained his qualifications and is currently assigned as a bus operator in Petitioner’s transportation department. Respondent’s employment is governed by the agreement between the Support Personnel Association of Lee County (SPALC) and Petitioner. In October 2007, Respondent was operating a school bus route which transported students to and from Alva Elementary/Middle School. At that time it was reported to Transportation Supervisor Joe Howard that Respondent had claimed to a Sheriff’s deputy and other school board employees that the students on his bus were all “gang members” and were using gang signs and drugs. Following an investigation into the incident, Respondent was removed from the Alva Elementary/Middle School route for the remainder of the 2007-2008 school year. Respondent was then placed on a route driving students to and from East Lee County High School (ELCHS). In the Fall of 2008, Respondent, while assigned an ELCHS route, was making disparaging remarks about the students on his route. Respondent was counseled by Joe Howard about the comments he was making concerning the students. He was also counseled about an incident where he initiated his route too early and, as a result, only picked up four students, when the route typically had in excess of 30 students. Following the incidents involving the students from ELCHS, in early October 2008, Respondent went into the office of Robert Morgan, Director of Transportation East and alleged that Joe Howard, Respondent’s immediate supervisor and an African- American, was a “cell leader” of the “Black Panthers” political organization, and that he was recruiting students on his bus and in the school to plan a revolution. Respondent brought Morgan to Howard’s work space and showed him a picture of a black panther, that Howard had leaning against his cubical. Respondent offered this example as evidence of Howard’s affiliation with the Black Panthers. Respondent insisted to Morgan that the School District should contact the Federal Bureau of Investigation (FBI) and Homeland Security regarding Howard because he was collecting money from students as a “cell leader” of the Black Panthers, and was a danger to the community. Examination of the photograph revealed that the panther was shown in its natural habitat, with no indications of a political or any other message or insignia on it. Respondent offered no other proof to support his allegations. As a result of Respondent’s unsupported allegations, Respondent was removed from the East Lee County route, from under the supervision of Howard, and also from the Buckingham Compound and placed at the Six Mile Cypress Transportation compound. Howard’s testimony is credible that the picture of the panther in his office had no meaning, other than possibly as a school mascot. In addition, it is found that Howard is not a security risk to the School District or to the community. This is particularly the case since Howard served 21 years in the military and was honorably discharged and has worked more than 18 years for Petitioner as an exemplary employee. On March 30, 2009, Respondent was involved in a minor traffic mishap in the parking lot of the Six Mile Cypress Transportation compound with Linda Leamy, a fellow bus operator. Leamy is an African-American. After work, while backing out of a parking space, Respondent backed into Leamy’s car as it was passing by Respondent’s parking spot. Respondent’s vehicle struck the driver’s side rear door of her car. Leamy testified that she has been a bus operator for nine years and up until March 30, 2009, had never had dealings with Respondent. Following the collision, Leamy got out of her car to check the damage and to check to see if Respondent was injured or not. Respondent immediately began to disparage her by calling her a “stupid idiot.” Respondent used the term “bitches,” which was directed towards Leamy as he yelled at her. A crowd began to gather at the scene of the collision because Respondent was raising his voice. At that time, Leamy called dispatch and a supervisor came and escorted Respondent away from the scene. On May 15, 2009, Respondent was in the driver’s lounge at the Six Mile Cypress Transportation compound, and as he walked by a group of co-workers, he thought he heard another co- worker, Chrishaundra Phillips, say something derogatory directed towards him. Phillips is also African-American. Leamy was seated at a table nearby but was not involved. Respondent approached Phillips and said, “I know what you said.” Respondent then became irate, and slammed his hand on the table where Leamy was seated, and stated to her, “We can take care of this right now, let’s take it outside.” Respondent then stated, “I will defend myself against you people . . . .” Leamy stood up and asked everyone to witness Respondent’s actions. Respondent then stormed toward the exit door, which was not blocked, but yelled at another co-worker Vonetta Vickers, also an African-American, to “get out of my fucking way.” Respondent then called all the employees in the lounge a “bunch of gangsters” and stated, “Don’t push me or I’ll push back.” Morgan was called to handle the situation. Respondent’s irrational actions on May 15, 2009, were similar to his actions on March 30, 2009, and caused Leamy to be “scared,” and also to feel as though Respondent had it “out for her.” The testimony by several witnesses is reliable that on May 15, 2009, Respondent, while engaged in the confrontation in the drivers lounge, was using several types of racial remarks, including, “You people need to go back to where you came from, back to the housing projects; what are you going to do, get your gangs to beat me up?” Respondent also used the phrase, “all you black people” and the word “nigger” during his tirade. On August 10, 2009, while under suspension, Respondent was permitted to engage in bidding for a route for the 2009-2010 school year. While attending the bidding session, at Dunbar High School, Respondent informed Morgan that while walking through the parking lot, two black males drove passed him in a car, smoking cigars and made a shooting gesture towards him. When Morgan checked on the two students, he discovered that they were band members who were on campus as members of the marching band. There was no evidence presented to substantiate Respondent’s claims that they had threatened him. Respondent’s bizarre and racially motivated behavior continued. In late September 2009, Respondent filed a petition in the Circuit Court seeking a restraining order against both Leamy and Howard. Respondent alleged that Leamy tampered with his mail box; that she was in a gang; and that she was in the Black Panthers organization and had showed him some kind of weapon during the bidding. Respondent alleged that Howard threatened him in a parking lot; that he would have Respondent shot to death by two individuals; that his mailbox was tampered with; and that Howard was stalking him and was having others under his control stalk him. Both petitions were dismissed by the court. At a predetermination conference held on October 14, 2009, Respondent indicated that he was being terrorized by African-Americans and that Petitioner and its staff were complicit in this terrorism. He requested that Petitioner report all of the activities that he had alleged in the past to the United States Department of Homeland Security and the FBI. Respondent indicated that he was undergoing psychological and psychiatric counseling because of all of the “racial issues” he was dealing with, but failed to offer specifics regarding such treatment. Dr. Gregory Adkins, Chief Human Resources Officer, testified that Respondent’s testimony at the predetermination conference was “quite alarming.” He concluded that Respondent was not being specifically targeted by anyone and that Respondent was making “outlandish claims” that racism somehow runs through everything. Dr. Adkins stated that he questioned Respondent’s mental stability. Respondent was rated as effective in his annual performance assessment at the end of the school years 2006-2007, 2007-2008, and 2008-2009. Respondent was recommended for retention in his position, although two of his routing supervisors expressed concern about his communication skills with co-workers. The testimony is clear that Respondent is displaying irrational, paranoid behaviors while on the job, and should not be around students. It is apparent that Respondent cannot effectively supervise students while they are under his care on a school bus. Respondent has a severe problem coping or interacting with ethnically diverse people, which is characterized by his paranoid behavior, as outlined by the incidents highlighted above in this case. Respondent was thoroughly advised of his right to present testimony in his own defense, but he declined to testify in his own behalf. In addition, the testimony of the other witnesses presented by Petitioner was credible and persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County, enter a final order holding that just cause exists for termination of the employment of Respondent for violation of School Board Policies 5.02(2), (4) and 5.29(1); and that Respondent should be dismissed from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Patricia Banks', employment as a school bus operator based upon the conduct alleged in the Petition for Termination of Employment.
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. Since October 31, 2001, Respondent has been employed by the School Board as a school bus operator. 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 (the "SPALC Agreement"). In September 2004, Respondent was assigned to drive a morning route and an afternoon route. Her morning route ended at about 10:00 a.m., and her afternoon route commenced at about 1:30 p.m. Respondent's daughter, India Miller, also worked as a school bus operator for the School Board. On September 20, 2004, between her morning and afternoon routes, Respondent drove her daughter to the Wal-Mart store on Colonial Boulevard in Fort Myers. Ms. Miller's car was not running, and she was in the process of moving into a new residence. She had asked Respondent to take her to Wal-Mart to purchase cleaning supplies and to look into buying a new computer. Respondent and Ms. Miller were wearing their School Board bus driver uniforms. Respondent parked her car in front of the store, but near the garden department, which is on the side of the building along with the automotive department. Respondent and Ms. Miller entered the building through the front or "general merchandise" ("GM") entrance. Respondent and Ms. Miller proceeded to the electronics department to look at computers. They were assisted by David Heady, a sales associate in the electronics department. Mr. Heady testified that Respondent asked him several questions about the functionality of a certain computer, an eMachines desktop model priced at $698.00. Each woman said she wanted one of the computers, but Mr. Heady had only one of them on the floor. He put that one in a shopping cart for Respondent, then proceeded to the storeroom to get a second computer for Ms. Miller. When he returned with the second computer, about three minutes later, Mr. Heady noticed that Ms. Miller and the first computer were gone. Respondent told him that Ms. Miller had taken the computer to the front of the store to check out. This disturbed Mr. Heady because it is Wal-Mart's policy that all computers should be paid for in the electronics department. Mr. Heady's suspicions were also somewhat aroused by the fact that it was Ms. Miller who took the first computer out of his department, when it was Respondent who had asked for it. According to Mr. Heady, Respondent started toward the front of the store with the second computer, but Mr. Heady stopped her and told her she had to pay for it in the electronics department. Respondent paid cash for the computer, a total of $739.88, then left the electronics department. Mr. Heady then called the loss prevention office and spoke with loss prevention officer, Bernard "Bo" Lee, to inform him that a computer that had not been paid for had been removed from the electronics department. He testified that he checked out Respondent before alerting loss prevention of the missing computer because he did not want a confrontation with Respondent. Mr. Heady also informed his supervisor in the electronics department, Terrell Russ, about the missing computer. Mr. Russ, in turn, made his own call to loss prevention and spoke with another loss prevention officer, Mickey Holman. Respondent testified that she and her daughter went into the electronics department because her daughter wanted a new computer. Respondent stated that she knows very little about computers and that it was Ms. Miller who was asking technical questions of Mr. Heady. Respondent did ask if Mr. Heady had a second computer because she was interested in placing one on layaway for her sons. Respondent testified that there was no computer on the floor of the electronics department. When her daughter told Mr. Heady she wanted to buy the model under discussion, he had to retrieve it from the storeroom. Respondent testified that she waited for Mr. Heady to bring the computer while Ms. Miller shopped for her cleaning supplies. Mr. Heady returned with the computer and told Respondent that she would have to pay for the computer before she could take it out of the electronics department. Respondent called Ms. Miller on her cell phone and told her that she had to come back to the electronics department to pay for the computer. Respondent also asked Ms. Miller if she could afford to lend her the money to place a computer on layaway. Ms. Miller responded that she would not know until she completed her purchases. Respondent could not recall whether Ms. Miller told her that she was coming back to purchase the computer. Respondent left the electronics department and walked to the in-store McDonalds to eat lunch. Finding the McDonalds too crowded, she went outside to smoke a cigarette. The one piece of documentary evidence available at the hearing was the Wal-Mart receipt for the purchase of the computer. The receipt indicates that the computer was purchased with cash in the electronics department, though it does not establish whether it was Respondent or Ms. Miller who made the purchase. Respondent's testimony agrees with that of Mr. Heady on one point: Ms. Miller left the electronics department and was separated from Respondent for at least several minutes. Messrs. Lee, Holman, and Russ all observed Ms. Miller during the time she was separated from Respondent. Mr. Lee testified that he was patrolling the floors of Wal-Mart to watch for shoplifters. He noticed three black women, including Ms. Miller and two unidentified women, placing an eMachines computer in a shopping cart. Mr. Lee stated that the eMachines computers were a "hot item," and he, therefore, paid special attention when customers placed them in shopping carts. Though he had seen Respondent with the other women in the electronics department, Mr. Lee did not see her touch the computer. Mr. Lee stated that he followed Ms. Miller to the front of the store. Respondent was still in the electronics department. Mr. Lee observed Ms. Miller push the cart holding the computer to the line of cash registers, through the line, past the greeter who checked her receipt, and out the GM entrance. Though he did not specifically observe Ms. Miller pay for the computer at the front registers, Mr. Lee assumed that it had been paid for because the greeter allowed her to leave the store without incident. From just inside the GM doors, Mr. Lee watched Ms. Miller walk to a car in the front parking lot. Mr. Lee did not see Ms. Miller load the computer into the car, but he did observe her re-enter the store a few minutes later, without the computer, but carrying a Wal-Mart receipt. He followed Ms. Miller to the toy department, where she met Respondent and the two unidentified women standing near a shopping cart containing a second eMachines computer. Mr. Holman testified that after being radioed by Mr. Russ that a computer had been taken from the electronics department by one of two women in school bus driver uniforms, he began searching the store. He observed Ms. Miller go through the checkout area and past the greeter, who signaled that Ms. Miller had a receipt for her computer. Mr. Holman radioed to the electronics department and told them there was no problem, that the woman had paid for the computer. The person in electronics who answered told Mr. Holman that there was a second computer. Mr. Holman went to look for the second computer while Mr. Lee maintained his surveillance on Ms. Miller. Mr. Holman found the missing computer sitting in an unattended shopping cart in the toy department. After a minute or two, he saw Respondent approach the cart. Then, two other women joined her, and they began talking. Mr. Holman stated that Respondent approached the cart several times, but did not actually touch or take hold of it. After a few minutes, Ms. Miller approached the group of three women. Mr. Lee followed her and maintained his surveillance apart from Mr. Holman. Both loss prevention officers were out of earshot of the four women. Mr. Lee recalled that Ms. Miller handed the receipt to Respondent at that point, though they later passed it back and forth more than once. After some conversation, the two unidentified women walked away. Ms. Miller began pushing the cart containing the computer toward the automotive department called the "TLE" for "Tire and Lube Express." Respondent walked in front of the cart. Mr. Lee noted that exiting through the TLE in the rear of the store would require Respondent and Ms. Miller to walk around the outside of the store to reach the front parking lot and that exiting through the GM entrance would be much more convenient. Mr. Lee testified that this behavior alone would have aroused his suspicions. The women guided the cart out through the TLE entrance. Ms. Miller pushed the cart, and Respondent lifted the front of the cart over the metal strip in the doorway. The electronic article surveillance ("EAS") system did not sound an alarm. Mr. Lee testified that it is not unusual for the EAS system not to sound, and he attached no significance to its silence. After the women were outside the store, Mr. Lee and Mr. Holman approached and asked them to return to the store. Ms. Miller told the men they had scared her. She said, "I pissed myself [sic]." Ms. Miller also told Mr. Lee that she had a receipt for a computer. Mr. Lee found it significant that she said "a computer," rather than "this computer." Mr. Lee and Mr. Holman escorted the women to the loss prevention office. Ms. Miller, ultimately, admitted to stealing the computer. Respondent denied doing anything wrong and was visibly upset when she was detained. In the loss prevention office, Respondent called her employer on her cell phone to arrange for someone to cover her afternoon bus route. None of the Wal-Mart employees present in the loss prevention office could recall Respondent's making any statement that could be construed as incriminating. The local police arrived, and both women were arrested. Ms. Miller subsequently resigned her employment with the School Board. At the time of the hearing, Respondent's criminal case had not been resolved. Again, Respondent told a different story. While she was smoking her cigarette outside, Respondent began to worry about finishing the shopping in time to drive her afternoon bus route. She called Ms. Miller on her cell phone and asked how much longer she would be in the store. Ms. Miller told Respondent that she was paying for her merchandise and asked Respondent whether she had seen her in-laws in the store. Respondent said that she had not seen them and asked where they were. Ms. Miller told her that she last saw them in the toy department. Respondent finished her cigarette, then walked back into Wal-Mart. She walked to the toy department and found her relatives where Ms. Miller had last seen them. Respondent noted that they had a computer in a shopping cart. One of the in-laws told her that it was Ms. Miller's computer, and they were waiting there for Ms. Miller to return. Ms. Miller arrived, took control of the shopping cart, and asked Respondent if she was ready to go. Respondent saw a Wal-Mart receipt in her daughter's hand. Ms. Miller told Respondent that she needed to buy something in the automotive department. Ms. Miller pushed the cart toward the rear of the store, where the TLE was located. When they reached the TLE, Ms. Miller began asking questions of the sales associate. Respondent interrupted her, saying they had to leave in order to make their afternoon bus routes. Ms. Miller pushed the cart out the TLE entrance, and they were approached by Messrs. Holman and Lee, who told them they needed to come back inside. Ms. Miller said, "Oh, shit. You're gonna make me piss on myself." Respondent wondered why Ms. Miller was reacting so strongly, if she had done nothing wrong. Respondent was adamant that she had no idea Ms. Miller was attempting to steal a computer. Respondent believed Ms. Miller had paid for the computer. Respondent testified that she and Ms. Miller had both worked for Wal-Mart in the past, and both knew that a customer is not allowed to take a computer from the electronics department without paying for it. Ms. Miller apparently had a receipt for the computer. Respondent testified that it never crossed her mind that Ms. Miller would steal a computer; that she believed her daughter "had better sense than that." Based upon the testimony of all the witnesses, including the deposition testimony of Messrs. Lee and Holman, and the documentary evidence, it is found that the School Board did not prove by a preponderance of the evidence that Respondent stole a computer from Wal-Mart. The evidence certainly demonstrated that Respondent's daughter, Ms. Miller, attempted to steal a computer. However, even if the testimony of the School Board's witnesses were accepted in its entirety, no witness definitively linked Respondent to the computer in such a way as to demonstrate her guilty knowledge that it was being stolen. The testimony of Mr. Holman cannot be credited. After detaining Respondent and Ms. Miller, Mr. Holman prepared a written report attesting that he observed Ms. Miller purchase a computer in the electronics department and take it to her car, while Respondent selected another computer, put it in a shopping cart, and took it to the toy department. In his pre-hearing deposition, Mr. Holman testified that he saw Ms. Miller select and pay for a computer in the electronics department. During cross-examination during the final hearing, Mr. Holman conceded that he witnessed none of these events. Mr. Holman's efforts to explain his misleading statements were unconvincing. He essentially stated that his reporting practice was to write a first-person narrative commingling hearsay reports from other witnesses with his own personal observations. Thus, when Mr. Holman wrote, "I observed a female (India Miller) purchase a desktop PC in the electronics [department]," he actually meant that Mr. Lee observed the purchase and later told Mr. Holman about it. Mr. Holman's testimony must be disregarded because the undersigned cannot reliably distinguish between Mr. Holman's first-hand observations and the hearsay statements that he adopted as his own. The testimony of the remaining witnesses conflicted on key points. The evidence established that Mr. Heady was confused as to the time of day during which the relevant events occurred. Mr. Heady had no recollection of the two unidentified black women whom Mr. Lee stated were with Respondent and Ms. Miller in the electronics department. Mr. Lee stated that he saw Ms. Miller and the two unidentified women put a computer in a shopping cart. Mr. Heady testified that he placed the computers in the shopping carts. Mr. Heady testified that Respondent paid for the first computer. However, he also testified that it was Respondent who asked him technical questions about the computer's capabilities. Respondent credibly testified that she is ignorant about computers and that it was her daughter who was asking Mr. Heady the technical questions. It is likely that Mr. Heady's recollection was confused and that it was Ms. Miller who paid for the first computer. Respondent's narrative of the relevant events was not without its inconsistencies, but the burden was not on Respondent to establish her innocence. Respondent's narrative was credible as to the key point, that she did not know her daughter was attempting to steal a computer from Wal-Mart. The evidence presented by the School Board was insufficient to demonstrate that Respondent ever gave any indication, through her words or her actions, that she knew Ms. Miller had not paid for the computer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding her back pay and benefits retroactive to December 16, 2004. DONE AND ENTERED this 15th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2005.
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2017.
