The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
Findings Of Fact Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound. The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC). Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006. On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department. Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative. Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone. On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired. Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005. Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time. Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus. On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus. Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound. When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day. Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily. Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005. Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run. Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident. Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired. Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic. Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed. De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search. Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search. During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a knife blade estimated to be a two inch to two and a half inch blade, along with other tools. Respondent admitted to de Leon that the knife was his. He also admitted that he had placed the knife in the briefcase, but had forgotten it was there. In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen. Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows: Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite. Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin. De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past. De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office. Respondent was asked to come into de Leon's office. Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible. A union representative did not arrive at de Leon's office prior to Respondent's departure. De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife. De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted. However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office. Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon. The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon. The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will. Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse, from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises. Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on. Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances. Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound. Respondent ignored the deputy's advice and drove from the premises. Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative. Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year. FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996). DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2006.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 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
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material to this proceeding, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Volusia County, Florida. Respondent, Tamika Whitaker, began working as a bus driver for the School Board in 2002. At all times relevant to the allegations in the Superintendent's Statement of Charges, Respondent was assigned to the bus route of Riverview Learning Center. In order to be employed as a school bus operator, Respondent had to undergo sixty hours of initial training, consisting of thirty-two hours of classroom training reviewing rules, policies, and procedures, and twenty-eight hours of training on the school bus. Respondent was also required to obtain a Class B commercial driver's license (CDL) with a passenger endorsement. This allows the bus operator to drive a bus that is approximately 40 feet long and 10 feet wide, weighs 24,000 to 26,000 pounds unloaded, and can carry approximately 77 passengers. School bus operators are required to know and abide by all federal and state laws, rules, and regulations pertaining to operating school buses, as well as all policies, practices, and procedures of the School Board. During her initial training, Respondent was provided a copy of the School Board's Student Transportation Services Procedural Manual and was trained regarding the procedures therein. Each time a change is made to the Manual, bus drivers are provided copies of the changes. In addition to her initial training, pursuant to Florida Department of Education rules, Respondent was required to complete eight hours of recertification training every year. The recertification training is designed to educate transportation staff on any new laws, rules, and regulations, and on policies, practices, and procedures of the School Board. At the March 2010 recertification training, changes to U.S. Department of Transportation's interpretation of federal regulations were discussed. Under the revised interpretation, texting while driving would be prohibited.1/ On May 4, 2010, Respondent's afternoon bus route was completed approximately 40 minutes later than usual. Because such a delay is unusual, the School Board investigated the delay pursuant to standard practices. This included review of the GPS report for the bus Respondent was driving, review of the video for the bus, and inquiry to the Student Transportation Services dispatch office. Greg Akin is the Director of Student Transportation Services for the School Board. He asked Patricia Rush, lead driver at the New Smyrna terminal, to review bus video of Respondent from her May 4, 2010, route to determine the cause for Respondent's delay. By accident, Ms. Rush watched a video from a different day, and saw actions of Respondent which Ms. Rush determined to be unsafe. Specifically, Ms. Rush described what she saw, "driving with no hands . . . driving with her elbows . . . using the cellular telephone . . . drinking out of a mug. There were students on board. I was just kind of shocked that she was doing that." Ms. Rush's concern regarding the use of the mug was that it was a large mug and appeared to Ms. Rush to block Respondent's face when she raised it to drink out of it while driving. Ms. Rush reported what she saw on the video to William Ralys, an area manager, who asked her to continue to review bus videos of Respondent and to archive what she saw. Ms. Rush reviewed the bus video of Respondent's routes on May 4, 2010, and observed Respondent pull over for a long period of time and use her cellular telephone. She also viewed the bus video of Respondent's routes on May 6, 2010, and observed Respondent using her cellular telephone while operating the bus with students on board. An internal investigation was conducted during which bus videos of several days of Respondent's routes were viewed by Mr. Akin, Assistant Director of Student Transportation Services Chip Kent, and by Mr. Ralys. Mr. Akin wrote a detailed chronology of what he observed Respondent doing while operating the school bus on April 30, 2010; May 3, 2010; and May 4, 2010. Bus video of Respondent's routes shows Respondent placing a call and talking on her cellular telephone while operating a school bus at approximately 4:00 p.m. on May 3, 2010. Respondent's cellular telephone records show she sent and received numerous text messages during her routes on that date.2/ Bus video of May 4, 2010 shows Respondent checking her cellular telephone, placing a call, and talking on the phone while operating the school bus. At approximately 3:32 p.m., the video shows Respondent talking on the phone regarding a personal matter. She told the person to whom she was speaking to "hold on, let me turn, hold on." Respondent then lowered her cellular telephone to her lap and waved out the window. Respondent then resumed her telephone conversation after turning. Also on May 4, 2010, the bus video of Respondent shows, and Respondent acknowledged, that she spent approximately 42 minutes stopped at a location, the library, which is not part of her route assignment. During this time, she again used her cell phone for talking and messaging for personal reasons. Students were not on the bus at this time, but Respondent was still "on the clock." Respondent's cellular telephone records for May 4, 2010, show that she sent and received numerous text messages while on her routes. Bus video for May 6, 2010, and her cellular telephone records, show Respondent using her cellular telephone to read and type text messages while operating the school bus with students on board, as well as to make phone calls. Bus video shows Respondent drinking from a large pink mug or container on multiple days while operating the school bus. Respondent has used this large mug for seven years and had not previously been disciplined for using it, nor had anyone told her to stop using it while driving her routes. Students on Respondent's bus were aware of her text messaging and complained to her about it. The bus video of May 6, 2010, shows Respondent holding her cellular phone in one hand while driving students. She appears to be reading incoming texts and texting while driving. She then pulls over to text message, at which time the students complain. One student said "We gotta pull over so you can text." He also said, "Oh, this is great, and "Drop me off . . . I can walk faster." Another student said to Respondent, "You can text and drive at the same time, I don't mind." The first student then offered to text message for Respondent, but she retorted, "You can't spell." Respondent presented evidence of another School Board employee, Sandra McDavid, a bus attendant, who was disciplined for not properly securing seat belts to wheel chair students and for talking on a cellular phone while operating the wheel chair lift while loading a wheel chair student. Ms. McDavid was suspended without pay for 20 days. Respondent argues that Ms. McDavid's case is similar to Respondent's, yet Respondent is receiving much harsher disciplinary action.3/ In a letter dated May 7, 2010, the Assistant Director of Student Transportation Services notified Respondent that her driving duties were temporarily suspended pending the outcome of an investigation. On June 17, 2010, Mr. Akin sent a letter to Respondent notifying her that she would be recommended for termination from employment. The letter was accompanied with the Statement of Charges signed by Superintendent Smith. At hearing, Mr. Akin noted that Respondent's case "is the first time [he] ever [saw] a case that involves this many issues on repeated days." On June 20, 2010, Respondent requested a hearing on her termination which gave rise to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Volusia County School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of December, 2010.
The Issue Whether the Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
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.
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer 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 December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
The Issue Whether Petitioner is entitled to bus transportation for his children to and from Liberty Pines Academy, pursuant to section 1006.21(3)(a), Florida Statutes; Florida Administrative Code Rule 6A-3.001; and operative rules of the St. Johns County School Board.
Findings Of Fact Petitioner, Ryan A. Johnson, is the parent of two elementary-school-aged children who attend the Academy, a public school operated by Respondent. The Academy is located on Russell Sampson Road in northern St. Johns County. Petitioner and his children reside at 120 South Arabella Way in the St. Johns Forest subdivision (“the subdivision”) in St. Johns County. The subdivision is a large, gated, planned unit development in northern St. Johns County. The subdivision is roughly bounded by County Road 2209 (“CR 2209”) on the east, Russell Sampson Road on the west, and County Road 210 West (“CR 210”) on the south. Respondent, St. Johns County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within St. Johns County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Respondent is required to provide transportation for public school students “whose homes are more than a reasonable walking distance” from their designated school, as defined by the rules of the State Board of Education. § 1006.21(3)(a), Fla. Stat. The State Board of Education defines “reasonable walking distance” as “not more than two (2) miles between the home and school.” Fla. Admin. Code R. 6A-3.001(3). Background Prior to the 2018-2019 school year, Respondent provided bus transportation for Petitioner’s children as “courtesy riders,” students who live within two miles of their assigned school, but for whom transportation is provided by special authorization of the Superintendent. In this case, there was a direct route of two miles or less between the subdivision and the Academy. Part of the route proceeded through a wooded area out of sight of the roadway. Respondent deemed the route “too great a risk” for the students,1/ and provided bus transportation by special authorization. Prior to the beginning of the 2018-2019 school year, the Florida Department of Transportation built an interchange at the intersection of CR 2209 and State Road 9B (“SR 9B”), northwest of the subdivision. SR 9B is a divided highway that runs from Interstate 295, across Interstate 95, to CR 2209. In connection with the interchange construction, a new sidewalk was constructed connecting the existing sidewalk along CR 2209 to the Academy, via a route parallel to CR 2209 and a portion of the SR 9B entrance ramp. In the spring of 2018, Respondent’s transportation staff reevaluated the eligibility of students residing in the subdivision for bus transportation to and from the Academy. Based on the reevaluation, the Superintendent recommended termination of bus transportation to and from the subdivision. On October 9, 2018, Respondent voted to approve the Superintendent’s recommendation to terminate bus transportation between the Academy and the subdivision. The decision to terminate was based on Respondent’s finding that the subdivision is located within a reasonable walking distance from the Academy. Petitioner’s Challenge Petitioner challenges Respondent’s decision to terminate bus transportation on three grounds. First, he asserts that Respondent incorrectly calculated the distance of the most direct traveled route between the Academy and his residence. Second, Petitioner asserts that the route constitutes a hazardous walking condition under state law. Third, Petitioner argues Respondent’s decision was arbitrary, capricious, oppressive, erroneous, an abuse of agency discretion, or an invalid exercise of delegated authority. Respondent’s Calculation To determine whether Academy students living in the subdivision would be eligible for bus transportation for the 2018-2019 school year, Respondent’s transportation staff calculated the walking distance from their homes to the Academy, measured from the end of their driveways, along interior subdivision sidewalks, through the North Arabella Way pedestrian gate, along the CR 2209 sidewalk to the Academy front door. Transportation staff determined this route to be the “most direct traveled route” to and from the school. Petitioner’s home is located 6,740 feet (1.276 miles) from the Academy, calculated based on the most direct traveled route. On that basis, Respondent determined Petitioner’s children are not entitled to bus transportation to and from the Academy. Petitioner disputes the calculation because the designated “most direct traveled route” requires access through the North Arabella Way pedestrian gate, which he argues is not accessible to school-aged children. The gate is equipped with a locking mechanism. Residents may gain access from the sidewalk into the subdivision at the gate with an electronic access card issued by the subdivision’s homeowner’s association (“HOA”). Pursuant to the subdivision’s master property owners’ association rules and regulations, no electronic access card may be issued to residents under the age of 15. The subdivision’s declaration of covenants and restrictions states, in pertinent part: Minors shall not be permitted to use the Common Area except under the supervision of an adult Owner or lawful occupant over the age of eighteen (18) years, except under such conditions as the Board may from time to time establish. (emphasis added). The Common Area is defined broadly to include “all real property dedicated to, owned by, or held by the Association, or intended by the Declarant to be devoted to the common use or enjoyment of the Members,” and includes streets, landscaping, fencing, signage, buffer areas, conservation areas, and “entry features,” as well as the clubhouse and recreational facilities. The subdivision’s controlling documents allow for exceptions to be made at the Board’s discretion. In other words, the subdivision’s HOA, not Respondent, has control over whether Academy students can access the North Arabella Way pedestrian gate. Petitioner did not introduce any evidence supporting a finding that Respondent is required to consider, in determining the most direct traveled route, whether access is limited by private property restrictions. Nothing in the state statute or rules require Respondent to consider whether a pedestrian entry point is privately controlled. The HOA has the authority to create an exception to the gate entry restriction, which apparently would not even require an amendment to the subdivision covenants and restrictions. Further, pursuant to rule 6A-3.001, the reasonable walking distance “shall be measured from the closest pedestrian entry point of the property where the student resides” to the closest school entrance. The rule provides that the pedestrian entry point of the residence “shall be where private property meets the public right-of-way.” Fla. Admin. Code R. 6A-3.001(3). The public right-of-way is located 81 feet west of the North Arabella Way pedestrian gate, where the subdivision’s private property ends. The rule does not require Respondent to include in its measurement the distance between Petitioner’s driveway and the right-of-way. Thus, the rule does not anticipate consideration of any gate, or other entry structure, beyond the right-of-way. The distance from the public right-of-way outside the North Arabella Way entrance to the school entrance is 0.816 miles. Respondent’s much more generous calculation errs in favor of Petitioner’s children.2/ Hazardous Walking Conditions Even if the subdivision were less than two miles from the Academy, Respondent would be required to provide transportation for Petitioner’s elementary school children if they were subject to hazardous walking conditions on the most direct traveled route. See § 1006.21(3)(b), Fla. Stat. Petitioner argues that his children are entitled to bus transportation to and from the Academy because the most direct traveled route identified by Respondent subjects his children to hazardous walking conditions. Section 1006.23 defines hazardous walking conditions with respect to walkways parallel to a road, perpendicular to a road, and crossings over a road. In the instant case, Petitioner’s children will travel through the North Arabella Way pedestrian gate and follow a sidewalk parallel to CR 2209, and parallel, for a short distance, to the SR 9B entrance ramp. For walkways parallel to a road, “[i]t shall be considered a hazardous walking condition with respect to any road along which students must walk . . . if there is not an area at least 4 feet wide adjacent to the road . . . having a surface upon which students may walk.” § 1006.23(2)(a)1., Fla. Stat. This requirement is referred to as a “suitable walk area,” and is not required to contain a paved sidewalk. The walk area parallel to CR 2209 and entrance ramp to SR 9B is improved with a continuous concrete sidewalk that is a minimum of five feet wide. The statute additionally requires, where the road is uncurbed, the walking area be offset three feet from the edge of the roadway. In the instant case, CR 2209 and SR 9B are both curbed roadways. Nevertheless, the sidewalk along the walking route is set off a minimum distance of three feet from the edge of the curb. That area is referred to as the “utility area” and is a grassed area between the edge of the curb and the edge of the sidewalk. There are no other applicable statutory components to the definition of hazardous walking condition. Despite the conformance of the route with the “suitable walk area” requirements, Petitioner maintains the walking route poses a hazardous walking condition because of the speed with which traffic travels the adjacent roadways, the proximity of the sidewalk to those roadways, and documented instances of vehicle accidents in the area, at least one of which resulted in an overturned car on the subject sidewalk. The posted speed limit on CR 2209 is 45 miles per hour. The posted speed on the SR 9B entrance ramp increases to 50 miles per hour. The posted increased speed limit is located on the ramp after the subject sidewalk “jogs” away from SR 9B to the Academy. Petitioner points to School Board Rule 8.13(8), which provides as follows: Maximum regard for the safety of students and due consideration for the protection of health of all students transported shall be primary requirements in the routing of buses, establishing student stops, appointing drivers, and in providing and operating transportation equipment. Petitioner argues that Respondent’s decision to terminate bus transportation to his children violates this rule. He argues that making his children walk along roadways with a posted speed limit of 45 miles per hour, and along an entrance ramp where cars are accelerating to a speed of 50 miles per hour, and where documented accidents have occurred, including one which resulted in an overturned car on the sidewalk, does not take into account maximum regard for their safety. He argues that maximum regard for their safety dictates providing bus transportation between the subdivision and the Academy. Petitioner’s argument fails because rule 8.13 applies to Respondent’s transportation program, not determinations of hazardous walking conditions. Subsection (8) governs decisions regarding bus routes, establishing bus stops, selecting and appointing drivers, and operating buses and equipment. Subsection (8) does not govern Respondent’s decisions whether to provide courtesy bus transportation to students within a reasonable walking distance to the Academy.3/ The route identified by Respondent for Petitioner’s children to walk to and from the Academy does not contain any hazardous walking condition as defined in section 1006.23(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns County School Board enter a final order dismissing Petitioner’s challenge and affirming its decision to terminate bus transportation for Petitioner’s children, unless a special authorization is granted by the Superintendent. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of April, 2019. 1/ T.148:16-17.
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.
