The Issue The issue in this proceeding is whether Petitioner has just cause to terminate Respondent's employment for an altercation he was involved in that occurred on his bus.
Findings Of Fact Based on the evidence credited by the undersigned at the hearing, the undersigned makes the following findings of material and relevant fact: Wint has been employed by the School Board as a school bus driver for approximately 15 years. There was no evidence presented that Wint had been disciplined for any prior instances of misconduct as a bus driver. Wint is covered as an employee under the Collective Bargaining Agreement of the American Federation of State, County, and Municipal Employees, Local 1184 (CBA), which provides that rights thus reserved exclusively to the School Board and the Superintendent . . . include . . . separation, suspension, dismissal and termination of employees for just cause. Pet. Ex. 1, § 3. School Board Policies 4210, 4210.01, 4213, and 8600 were entered as exhibits and apply to Wint's employment.1/ Pet. Exs. 2–5. The School Board issued a Handbook for School Bus Drivers and Bus Aides (Handbook) for the 2017-2018 school year, which applies to Respondent's employment. The Handbook was admitted into evidence.2/ Pet. Ex. 6. School Bus Incident on October 10, 2017 To summarize, on October 10, 2017, Wint was transporting a large group of middle school students on his school bus. Due to a disruption by one of the students, Wint felt it was necessary to pull the bus over. Wint stopped the bus and went to the back to confront a 13-year-old, 8th-grade male student who had intentionally and unnecessarily opened the bus's emergency window, setting off the bus alarm.3/ A video of segments of the confrontation was recorded by students and entered into evidence. Pet. Exs. 15 and 16. Petitioner's Exhibit 16 is video coverage of the first part of the physical altercation between Wint and the male student. Petitioner's Exhibit 15 is video coverage of the second part of the physical altercation, after both had moved back down the bus aisle to return to their respective seats on the bus.4/ With respect to the details, the incident unfolded as follows: while the bus was in motion, the male student left his assigned seat without permission, went to the back of the bus, and opened the emergency exit window, causing the bus's audible alarm to sound.5/ Wint was required to immediately stop the bus to address the emergency alarm going off. Instead of directly calling dispatch as stated in the Handbook, Wint went to the back of the bus to confront the student, order him back to his assigned seat, assess the situation, and determine the best course of action. Pet. Exs. 15 and 16; Pet. Ex. 6, § 10.06(c). Wint went to the back of the bus and confronted the male student. The altercation started when the male student rose up slightly out of the bus seat and punched Wint in the stomach several times. This evidence was uncontradicted. No other testimony or documents were offered to rebut this evidence. (These initial moments of the confrontation are not on the videos.) The first part of the cellphone video is shot from an elevated angle from the rear bus seat and starts by showing the two locked up, struggling in the back of the bus. Wint has his hands on the male student pulling him up forcefully and attempting to push the male student back up the aisleway to the front of the bus where his seat was located, and away from the other students. The male student pulled free from Wint's grasp and started up the aisleway. However, he turned around immediately and tried to shove Wint. Another male student interceded and restrained the male student by temporarily putting him in a headlock. When this occurred, Wint held back in the aisleway near the rear of the bus, watching and collecting himself. After the initial confrontation in the back of the bus, the second cellphone video picks up the action from a different angle (shooting from the middle of the bus towards the back). Several other students intervened to keep Wint and the male student separated. The male student tried to start up the altercation again and attempted to break through several students to get back at Wint. Wint is standing cornered in the back of the bus with his back to the emergency exit. While all this is going on, there is general pandemonium inside the bus with the other 20 to 25 students watching, yelling, or jeering at the scene. Notably, several of the other students appear frightened or alarmed and are very close to the altercation as it unfolds. The mid-bus cellphone video shows the male student turning around to head back up the bus aisleway. The male student is visibly angry, very upset, and is seen forcefully pounding his fists together defiantly as he walks. Wint is off camera, but the undersigned reasonably infers that Wint is behind the male student following him back up towards the front of the bus. As he walks up the aisleway in front of Wint, in an overt display of strong aggression and uncontrollable anger, the male student leans across a bus seat and violently punches a school bus window with his clenched fist.6/ Pet. Ex. 15. As Wint came down the narrow aisle behind the student and attempted to squeeze past him to continue to the driver's seat, Wint accidentally brushed against the male student.7/ At that point, the video shows the male student rapidly wheel around and the two begin to tussle, hands on each other, in the bus seat. Wint backs the male student up into the bus seat, closer to the window. Wint has both hands near, but not on, the neck area of the male student. There is no punching or swinging, just restraining and controlling. The more persuasive and credible evidence does not support the School Board's claim that Wint was intentionally choking the student with a pressure hold around his neck, nor holding the male student around the neck with his hands. Rather, the more persuasive evidence shows, and the undersigned finds, that Wint is attempting to control and restrain the student by holding him firmly by the collar of his jacket/sweatshirt.8/ At the end, when a female student jumped in to separate the two, Wint abruptly released his hold and headed back to his driver's seat. The cellphone video ends at that point. Although the evidence was conflicting, it revealed, and the undersigned credits, that Wint had previously notified the Miami-Dade County School District (District) in writing that this particular male student had been repeatedly disruptive on his bus. Specifically, Wint complained in writing on or about October 4, 2017, that the same male student had been improperly opening the window and throwing objects outside the bus. His report was on a standard reporting form required by the School Board. It is called Student Case Management Referral, No. 723119. This other reported incident occurred on or about September 29, 2017, several days before the altercation. Resp. Ex. 1. The Student Case Management Referral form turned in by Wint was initialed by a District employee on October 4, 2017, just days before this bus incident on October 10, 2017.9/ Susan Detmold is the district director for Transportation Services since 2013. Detmold viewed the two videos of the altercation between Respondent and the male student. Pet. Exs. 15 and 16. Detmold opined that it was inappropriate behavior for a bus driver to engage in the behavior exhibited in the videos. Detmold testified that if a student is not sitting in his assigned seat, then the school bus driver should give warnings and provide a misconduct referral to the District.10/ She also testified that in accordance with State Board Rule, only the school principals have the authority to discipline students.11/ Detmold testified that the Handbook provides drivers with procedures to follow when handling student misconduct on the bus. Pet. Ex. 6, §§ 10.06-10.07, pp. 94-96. The Handbook states that school bus drivers can stop the bus if the behavior is a serious one. Drivers will immediately contact their Dispatch Office by two-way radio and provide them with details of the situation. Drivers are to await the aid of the field operations specialist or school police. Pet. Ex. 6, § 10.06(c), p. 94. Wint disregarded this guideline in the Handbook and testified that he stopped the bus, went to the back of the bus to confront the student, but did not call Dispatch for school police until after the physical altercation with the male student had ended. The Handbook states in accordance with Florida Administrative Code Rule 6A-3.0171, State Board Rule, it is the responsibility of the bus driver [t]o maintain order and discipline, under the direction of the school principal, on the part of every passenger. Pet. Ex. 6, § 2.03(i), p. 13. The videos show, and the undersigned finds, that Wint attempted, by his actions, to maintain order and safety on the bus in the face of a very unruly, aggressive, and violent male student who was putting the safety of the bus, the bus driver, and other students at risk. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus driver is responsible for the safety of the children in his/her care. A driver should place the safety, health, and well-being of his/her passengers above everything else while they are on the bus. Drivers shall maintain a professional attitude. Drivers should be patient, firm, fair, and friendly. Pet. Ex. 6, § 2.05(e), p.15. The Handbook also states, in part, the school bus drivers will make a reasonable effort to deal with infractions of the rules of student conduct and will, to the best of their ability, maintain order and good behavior by students on their buses. Pet. Ex. 6, § 2.05(o), p. 17. The videos show, and the undersigned finds, that Wint attempted during this incident to maintain order and safety on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, the school bus drivers must not touch or put [their] hands on students. Pet. Ex. 6, § 2.06(a), p. 21. The videos show that Wint did indeed lay his hands on the student, but the undersigned finds that this was done to restrain and control a very unruly and violent student, who presented a safety risk to the operation of the bus and other students on the bus. Pet. Exs. 15 and 16. The Handbook states, in pertinent part, school bus drivers will not physically discipline . . . any student. Pet. Ex. 6, § 10.07(d), p. 96. The videos do not show that Wint physically disciplined a student. Rather, he justifiably attempted to control a violent, angry, and uncontrollable student who placed his safety and the safety of other students at risk. Pet. Exs. 15 and 16. Ultimate Findings of Fact Under the facts outlined herein, the undersigned finds that Wint's actions and conduct during this incident conformed with sections 1006.10 and 1012.45, Florida Statutes. The undersigned finds that the School Board's rules, policies, and Handbook provisions proscribe conduct authorized or required by sections 1006.10 and 1012.45 for a bus driver dealing with an unruly and violent student in an emergency situation. To the extent they do so, they are invalid and not controlling.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County immediately reinstating Respondent, Livingston Wint, to his position as school bus driver and provide him with back pay and other accumulated benefits since his suspension. DONE AND ENTERED this 8th day of August, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2018.
The Issue Whether petitioner was entitled to terminate respondent's employment or suspend her without pay because she failed to disclose two traffic infractions, an arrest, and several charges of law breaking?
Findings Of Fact In July of 1986, while a resident of Day, Florida, respondent Gloria Faye Townsend signed an application for employment by the Columbia County School Board. Among the questions on the form was No. 33, which asks: Have you ever been arrested, charged or held by military or civilian law enforcement authorities for violation of any law, ordinance or regulation? (Include traffic violations but not parking tickets) After the question came "yes" and "no," each followed by a box. Ms. Townsend, who completed the form herself, typed an "X" in the box next to "No." Petitioner's Exhibit B. Just above Ms. Townsend's signature appears the following: ... I also understand that employment is contingent upon the results of a thorough character and fitness investigation. [For which] I hereby give authority on this application[.] I am aware that willful withholding of information or making of false statement on this application will be the basis for dismissal. I agree to those conditions and hereby certify that all statements made on this application are true, complete and correct to the best of my knowledge. Petitioner's Exhibit B. Ms. Townsend submitted the completed form to the School Board. Some time later Earl Varnes, to whom Ms. Townsend had disclosed her hope of finding a teaching position in Columbia County, learned of a mid-year vacancy Grady D. "Sam" Markham anticipated at Five Points Elementary School. Mr. Varnes mentioned Ms. Townsend, who at all pertinent times has held a Florida teacher's certificate, no. 341799, to Mr. Markham. As principal for nine years, Mr. Markham's recommendation of a teacher to replace the one who left on maternity leave December 19, 1986, proved dispositive. Before he met Ms. Townsend, Mr. Markham had heard from Mr. Varnes about problems Ms. Townsend had encountered in Lafayette County, where she had resigned a teaching position, and been harassed by at least one law enforcement officer. Mr. Markham discussed traffic citations and other matters with Ms. Townsend during three face-to-face interviews and some dozen telephone conversations that preceded her coming to work. Mr. Varnes was not aware, however, that Ms. Townsend had been found guilty of passing a school bus while it was stopped or that she had been charged with opposing a police officer. (T. 112, 117, 118). After the initial interview, Mr. Markham "went to the School Board office and looked at the application" (T. 20) Ms. Townsend had submitted the preceding summer. He relied in part on the application in recommending her for the job. He did not, however, ask her about her mistaken affirmative answer to question No. 20(a), "Has your license to practice every been revoked or suspended?" Although Mr. Markham testified that he would not have recommended her for employment if he had known of her arrest or of the school bus infractions, (T. 23) she "told him about the bus stops ... the careless driving ... the deputy." (T. 81). Mr. Markham heard another version of events in December of 1987 from William F. Hart, who is principal of Lafayette Elementary School. After obtaining court records, Mr. Markham relayed information concerning Ms. Townsend's traffic infractions and arrests to Silas Pittman, who suspended Ms. Townsend effective March 8, 1988, and recommended to the School Board that she be suspended from employment, without pay, and that her employment be terminated. The School Board voted first to suspend, then to terminate her employment. In April of 1987, Mr. Pittman and Ms. Townsend executed an annual contract of employment for the period August 17, 1987, to June 4, 1988. Joint Exhibit No. 21. The agreement provides that "The teacher shall not be dismissed during the term of this contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes." Id. The Law and Ms. Townsend On January 23, 1981, a Deputy Feagle of the Lafayette County Sheriff's Office stopped the car Ms. Townsend was driving and proposition her, but she was not interested. (T. 67) She has not been accused of violating any law on that day. On May 1, 1981, when she spotted Deputy Wendell Feagle manning a road block on the highway ahead of her, she turned onto another road "a secondary road ... instead of going through the road block ... and ... went through the Forestry Services, and then got back up on the highway ... and then went on home." (T. 68-69). About two weeks later, four or five "Sheriff's cars" arrived at the school where Ms. Townsend taught at the time. Asked to "come ... and talk with the judge" (T. 70), she got into the car Deputy Kenny Wimberly was driving. Instead of stopping at the courthouse, the caravan made its way to the jail in Mayo where a deputy sheriff gave her "five tickets." Nobody took Ms. Townsend's finger prints or told her she was under arrest. Petitioner offered in evidence two of the traffic citations Ms. Townsend received on May 1, 1981, No. 225-081W, charging careless driving, Petitioner's Exhibit No. 1, and No. 225-082W, charging her with "Attempting to Elude A Police Officer." Petitioner's Exhibit No. 5. On July 2, 1981, she was convicted "of the crime of [o]perating motor vehicle in a careless manner," Petitioner's Exhibit No. 3, and fined $25, but all other charges against her arising out of the events of May 1, 1981, were dismissed. Petitioner's Exhibit Nos. 7 and 9. (T. 74) Among the charges dismissed was the charge that, on May 1, 1981, "Faye Townsend did ... unlawfully obstruct or oppose a law enforcement officer ... in the execution of a legal duty, without offering or doing violence to the person of the officer." Petitioner's Exhibit No. 88. In a subsequent conversation, the Sheriff of Lafayette County told Ms. Townsend, "[W]ithin one year there will be no record of this," (T. 76) referring to the legal proceedings occasioned by the citations and affidavits Wendell Feagle executed against Ms. Townsend in May of 1981. When traffic citation No. 137-660Q, Petitioner's Exhibit No. 13, arrived in the mail, Ms. Townsend learned that it had been alleged that she "RAN SCHOOL BUS STOP SIGN," on October 24, 1984. Although the citation stated that it was for an infraction that did not require a court appearance, Ms. Townsend engaged a lawyer to contest the accusation; and to defend against a subsequent charge that she was guilty of the same infraction at the same place on November 8, 1984. Petitioner's Exhibit No. 15. Carla S. Brock, a teacher at Lafayette High School, drove the bus and executed the affidavits accusing Ms. Townsend on both occasions. After an evidentiary hearing on January 10, 1985, Ms. Townsend was "found guilty ... of passing a stopped school bus ... in both cases." Petitioner's Exhibit No. 18. Ms. Townsend testified to the effect that she viewed her legal problems as "minor traffic violations," (T. 66) and explained her answer to question No. 33, as follows: I think 43 was my signature, and 33 was asking me if I had been arrested, and I hadn't been arrested. A witness at hearing testified in regard to question No. 33, "it is highly unusual to see one that says 'including' traffic violation[s]." (T. 125).
The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
Findings Of Fact The School Board of Pasco County ("Respondent") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). At all times material to this case, the Respondent has had a nondiscrimination policy and a policy prohibiting sexual harassment in effect. The policies are provided to all employees, including the Petitioner, upon hiring, and are posted throughout the workplace. Denise E. Hoedt ("Petitioner") at all times material to this case was a bus driver employed by the Respondent. As of the date of the hearing, the Petitioner was on worker's compensation leave. There is no evidence that the worker's compensation leave is related to the allegations at issue in this case. When the Petitioner was initially employed by the Respondent she was assigned to a regular bus route and was stationed in the "Northwest Garage" unit of the Respondent's transportation system. After having been employed for a sufficient period of time, she was provided with a contractual right to choose her route. She chose to transport exceptional education (ESE) students. As an ESE driver, the Petitioner's immediate supervisor was Jacqueline Dennis. Ms. Dennis did not work in the same garage from which the Petitioner was based. The Petitioner has been involved in a continuing series of grievances against Mr. Valentine Gallas, a "Route Specialist" for the Respondent. The grievances, filed prior to the complaint to the Florida Commission on Human Relations at issue in this proceeding, have been directed towards her discontent with work assigned to her by Mr. Gallas. Although Mr. Gallas was not the Petitioner's immediate supervisor, as a Route Specialist located in the Northwest Garage, he had supervisory authority over the Petitioner, as did Joanne Snodgrass, another Route Specialist in the same facility. One of the prior grievances was directed towards his request that she assume responsibility for opening a large metal gate at the entrance of the bus storage compound. The complaint was resolved by an agreement that she would not be asked to open the gate. Upon being requested by a different official to drive a later route and take responsibility to close the gate, the Petitioner complied with the request. Although she did not continue to drive the later route, there is no evidence that her decision was related to the request regarding gate closure. Another grievance centered on Mr. Gallas' directive that she drive a second bus run after she had completed her initial run. Mr. Gallas apparently did not provide the Petitioner with an opportunity to use the rest room prior to the second run. The Petitioner filed a grievance about the matter which was resolved by an agreement that, prior to being asked to take an additional route, she would be provided with a rest room break. The Petitioner asserted that because Mr. Gallas assigned her to a bus with a poor driver's seat, her back was injured. There is no credible evidence to establish that the seat caused or contributed to the claimed back injury. The Petitioner suggested that the clock in the bus driver's lounge was tampered with and resulted in her being reprimanded for tardiness. There is no credible evidence that the clock was intentionally tampered with to cause the Petitioner to be reprimanded. There is no evidence that any of the prior disputes between the Petitioner and Mr. Gallas were related to the Petitioner's gender or national origin, or were a form of sexual harassment of the Petitioner. When the Petitioner was driving a regular bus route, Mr. Gallas was responsible for her work assignments. When she began to drive an ESE route, she was no longer directly responsible to Mr. Gallas. In January 1993, the Petitioner, via a union representative, contacted school board officials and voiced her dissatisfaction with Mr. Gallas' alleged behavior. Late in January 1993, the Petitioner, accompanied by the union representative, met in an interview with the school board's personnel investigator. At the interview, the Petitioner stated that she believed she had been discriminated against on account of her gender and ethnic origin, and that she had been subjected to sexual harassment by Mr. Gallas. During the interview, the investigator attempted to obtain allegations of specific conduct, but other than as stated herein, the Petitioner was unable to offer such allegations. Although during the interview, the Petitioner alleged that Mr. Gallas had made derogatory comments regarding her ethnic origin and her weight, the only specific incident of which the Petitioner spoke was Mr. Gallas' alleged remark to her, "Oh, a Cuban." She offered no context for the remark. There was no specific remark regarding weight disclosed during the interview. The Petitioner also alleged that subsequent to Mr. Gallas' purchase of beverages for a group of bus drivers, he had repeatedly said she "owed him one" in a manner which the Petitioner interpreted as sexual. The remark continued until such time as the Petitioner purchased a beverage for Mr. Gallas. Further, the Petitioner alleged that in November 1992, Mr. Gallas came into the bus drivers' lounge and handed her an offensive written statement regarding intercourse which she interpreted as a request for sex. The investigator inquired as to whether Mr. Gallas had touched the Petitioner. She replied he had not. There was no mention of any other alleged inappropriate activity by Mr. Gallas towards the Petitioner. At the conclusion of the interview, the investigator expressed her concern about the serious nature of the charges. She assured the Petitioner that there would be no retaliation for the report of the complaints. She noted that the findings of the investigation would be confidential and requested that the Petitioner refrain from discussing the allegations pending the investigation. The investigator began her inquiry the day after meeting with the Petitioner. A meeting was scheduled with Mr. Gallas and with other persons who were aware of Mr. Gallas and the operation of the Northwest Garage. As to the investigator's request that the Respondent refrain from discussing the matter, the Petitioner failed to comply with this request. The matter became fodder for discussion in the workplace. A petition was initiated by several employees on Mr. Gallas' behalf. The Petitioner attempted to initiate her own petition drive without success. The matter was viewed by some coworkers as an attempt by the Petitioner to have Mr. Gallas' employment terminated. The investigator for the Respondent viewed the Petitioner's allegations with skepticism due to the "vagueness" of the specifics. The failure of the Petitioner to comply with the request to keep the matter confidential during the investigation did little to alleviate the investigator's initial concerns about the Petitioner's credibility. Despite the continuing controversy, the school board attempted to complete its investigation of the matters about which the Petitioner had complained. In an interview with the investigator, Mr. Gallas denied the charges. He stated that the remark regarding her origin occurred in the context of a discussion between the Petitioner and another driver overheard by Mr. Gallas, at which time the remark was made. He denied making any reference to her weight. Although acknowledging that he had seen the "intercourse" card in the garage, he denied having handed it to her. He denied any sexual intent in the "owe me one" remark. Other interviews were conducted with other persons who are knowledgeable about the operations of the Northwest Garage and Mr. Gallas' employment there. The investigator was unable to substantiate the allegations. Based on a review of the Petitioner's interview and allegations, Mr. Gallas' denial, and the inability to find further substantiation for the complaints, the investigator determined that there was no reasonable cause to believe that the complaints were credible. After the investigation and determination were completed, there was a time delay in providing notification of the determination to the Petitioner. The evidence establishes that the delay was not an attempt to deprive the Petitioner of any contractual or legal right but was due to nothing more than clerical error on the part of the personnel investigator. There is no evidence that there was any harm to the Petitioner related to the delay. In May 1993, the Petitioner filed the complaint with the Florida Commission on Human Relations (FCHR) which is at issue in this proceeding. As identified in the FCHR complaint, the Petitioner's allegations are addressed as follows: The November 1992 "intercourse" card incident-- The Petitioner asserts that in November 1992, as she was seated with two other bus drivers in the driver's lounge, Mr. Gallas entered the lounge, walked to the table where the Petitioner and her coworkers sat, and handed a card titled "intercourse" to the Petitioner. The card was an offensive attempt at humor and included a sexual invitation. Of the two coworkers at the table, only one saw the card. The Petitioner refused to permit the other coworker to see the card. All of the women testified at the hearing. Although the Respondent presented the investigator's recollection of Mr. Gallas' denial of the incident, Mr. Gallas was not called by either party to testify at the hearing. The testimony of the two drivers who were at the table when the incident occurred and who testified at the hearing substantiates the Petitioner's allegation. There is no credible evidence that prior to her January 1993 complaint about the incident, the Petitioner discussed the matter with any other person. The evidence fails to establish that Mr. Gallas' behavior regarding the "intercourse" card incident, although offensive and inappropriate, caused the Petitioner difficulty in performing her job duties or any other harm or injury. Offensive touching of the Petitioner by Mr. Gallas-- The Petitioner asserts that Mr. Gallas occasionally would stand too close to her and that on one occasion, he brushed against her breasts in passing her. There is no evidence that, prior to the filing of the FCHR complaint, the Petitioner had ever complained about unwarranted or offensive touching by Mr. Gallas. Upon direct inquiry by the school board's personnel investigator, the Petitioner denied that she had been touched by Mr. Gallas. The assertion is not supported by credible evidence. Mr. Gallas' sexual requests of the Petitioner-- There is no credible evidence that Mr. Gallas made any verbal sexual requests of the Petitioner. The only incident which may be viewed as a sexual invitation relates to the "intercourse" card addressed previously in this Recommended Order. The Petitioner "owed" Mr. Gallas-- The evidence establishes that at a luncheon attended by coworkers, Mr. Gallas purchased beverages for the group and made a statement to the effect that the recipients "owed him one." Mr. Gallas would occasionally repeat his "you owe me one" statement to the Petitioner. There is no evidence that the statement was made in a sexual manner or that such was intended by Mr. Gallas. Eventually, the Petitioner purchased a beverage for Mr. Gallas, stating "now I don't owe you one." After being bought a drink, Mr. Gallas no longer made the remark. Verbal slurs about the Petitioner's national origin-- The Petitioner is of Mexican, Spanish and Cuban origin. The Petitioner asserts that on one occasion, she became embroiled in an argument with Mr. Gallas during which he remarked, "Oh, You're nothing but a Cuban." There is no other evidence to support her assertion. The evidence is insufficient to establish that Mr. Gallas made such remarks to other employees or that such conversation was typical of him. The assertion is not credible. Terms and conditions of her employment-- The Petitioner asserts that the "terms and conditions' of her employment were different from other bus drivers with responsibilities similar to hers. The evidence fails to support the assertion. Drivers transporting ESE students generally have fewer students to transport than drivers of regular routes. It is possible that an ESE driver may transport only one or two children. ESE drivers often complete their routes before drivers of regular routes. Because the Petitioner was responsible for transportation of ESE students, her route was often completed earlier than other bus drivers. ESE drivers who have completed their routes may "stay on the clock" in which case they may be asked to provide assistance in clerical tasks or to complete other bus routes. In the alternative, drivers may "punch out" and leave. Additional work is assigned to drivers by the Route Specialist in the garage from which the drivers are based. Mr. Gallas was the Route Specialist in the garage from which the Petitioner was based. The Petitioner frequently remained on the clock and was accordingly assigned additional work to do. There is no evidence that any drivers who remained "on the clock" were treated any differently that was the Petitioner. On one afternoon, the Petitioner, suffering from back pain, returned from her route and laid down in her bus. Mr. Gallas came onto the vehicle and told her that she needed to be working. He suggested that she could be made to sweep the bus compound if she did not find other duties to complete. The evidence fails to establish that the Petitioner, who was on the payroll at the time she was resting in her bus, informed Mr. Gallas that she was not feeling well. The evidence fails to establish that Mr. Gallas' actions upon discovering the Petitioner at rest in her bus were related to her gender, national origin, or were a form of sexual harassment. There is no evidence that other drivers were permitted, while on duty, to rest in their busses. As previously addressed, on one occasion, Mr. Gallas directed the Petitioner, immediately upon her return from her normal bus run, to perform additional transportation duties. Mr. Gallas did not provide the Petitioner with an opportunity to use the rest room before beginning her second run. Subsequent to her complaint to appropriate authorities, Mr. Gallas was directed to permit the Petitioner to use the rest room before assigning additional responsibilities to her. Although Mr. Gallas' lack of concern about the Petitioner's personal needs was inconsiderate, the evidence fails to establish that the incident was related to gender, national origin, or were a form of sexual harassment. The Petitioner also asserts that other drivers or their spouses are permitted to bring personal vehicles into the bus compound and that she was not. The evidence fails to establish that other drivers or their spouses are routinely permitted to bring personal vehicles into the compound. The Petitioner complained that during a heavy storm one day, her husband came into the compound to pick her up and was asked to take his vehicle back outside the compound. On that day, Mr. Gallas offered to walk the Petitioner with an umbrella to her car but she declined. The Respondent's inquiry into the January 1993 grievance-- The Petitioner asserts that the school board's inquiry into her January 1993 grievance was incomplete and that the determination that the grievance was unfounded was inappropriate. The evidence fails to support the assertion. The greater weight of the evidence establishes that the Petitioner's complaints, as they were communicated to the school board, were as fully investigated as was possible. The Petitioner's complaints to the Board did not include allegations related to unwarranted touching, according such allegations were not investigated. Further, the investigation was hampered by the spread of rumor and innuendo throughout the workplace regarding the Petitioner's sexual harassment allegations. Although the evidence is not entirely clear as to where responsibility lies for the generation of the rumor and internal bickering, school board personnel involved in the investigation specifically directed the Petitioner to refrain from discussing the allegations pending the board's investigation. As previously stated, she failed to comply with this request. Coworkers of the Petitioner were also involved in discussion about the pending investigation. At that point, the workplace appears to have become divided into factions and the board's investigation was compromised. The evidence establishes that the board's investigation of the Petitioner's grievance was conducted appropriately and that persons with direct knowledge related to the allegations (including Mr. Gallas who was inexplicably not called by either party to testify at the hearing) were contacted and interviewed. Although the investigation became compromised and was completed prematurely, there is no evidence that based on the information obtained by board personnel, the board's determination that the grievance was unfounded was outside the authority of the board or unsupported by the information which the board had obtained The Petitioner seeks to be "reimbursed for all the pain and suffering I have endured...." The evidence fails to establish that such an award is appropriate. The Petitioner offered no evidence related to "pain and suffering" or which would establish that such injury, if present, is related to employment conditions. The Petitioner also seeks to be reimbursed "for any and all money which was used to seek legal consultation." There is no evidence that the Petitioner, who has represented herself throughout this proceeding, has incurred any expenses related to legal consultation regarding this complaint; therefore such an award is not appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed in this case. DONE and RECOMMENDED this 9th of June, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6652 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by the greater weight of credible and persuasive evidence. Proposed finding of fact paragraph six continues for approximately seven pages and consists largely of recitation of conflicting testimony. The testimony has been reconciled as indicated in this Recommended Order. The proposed finding is rejected as subordinate, unnecessary, immaterial and not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 8-9. Rejected, subordinate. 10-16. Rejected, unnecessary. This unnumbered proposed finding consists of "examples of inappropriate sexual behavior" by Mr. Gallas and is treated as follows: Rejected as not supported by the greater weight of credible and persuasive testimony: a. Rejected as irrelevant: c, b, e. Rejected as immaterial: d, f, g, h. This proposed finding consists of "examples of inappropriate sexual behavior involving Mr. Valentine Gallas and Ms. Denise Hoedt" and is treated as follows: Rejected, there is no credible evidence that the offer of an umbrella was "inappropriate sexual behavior b, k. Rejected, immaterial l, m, n, o. Accepted as modified. Remainder is rejected as not supported by the greater weight of credible and persuasive evidence. Rejected as not supported by greater weight of credible and persuasive evidence: a, g. Rejected, subordinate: d, h, i. Rejected, irrelevant: f. Rejected, not supported by the greater weight of credible and persuasive evidence. There is no credible evidence that the Petitioner or her husband have been subjected to restrictions regarding personal cars within the bus compound which are not generally applicable to all drivers, except when specific circumstances require otherwise. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to Pyles' attendance at meeting, unnecessary. Rejected as to note taking by the investigator, unnecessary. 12-13. Rejected, unnecessary. 16-18. Rejected, subordinate. 23-33. Rejected, subordinate, unnecessary. 34. Rejected as to ulterior motives of Petitioner, unnecessary. COPIES FURNISHED: Thomas E. Weightman, Superintendent Pasco County School System 7227 Land O' Lakes Blvd. Land O' Lakes, Florida 34639-2805 Denise E. Hoedt 11605 U. S. Highway 41 Spring Hill, Florida 34610 Mark Graves, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.
Findings Of Fact At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus. Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Lula Williams 1604 West Scott Street Pensacola, Florida 32501 Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the School Board should terminate or take other disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Joe Thomas Alford, Jr., started working for the Bay County School Board in 1980, as a substitute school bus driver. His first full-time position with the School Board was as a "gasoline attendant," a position he assumed in 1981. After Larry Daniels became superintendent of transportation in July of 1985, he granted Mr. Alford's request to be permitted to resume driving a school bus. By all accounts, Mr. Alford did a good job as a full-time bus driver through the end of the school year 1986-87, except for the day he received a speeding ticket while driving a school bus. On another occasion, he exhibited great courage, even heroism, as one of the drivers in a convoy returning from an athletic contest. When the lead bus had an accident that made it impossible for students to get out of the bus in the usual way, Mr. Alford climbed in through a window and kicked out the emergency door, leaking gas tank notwithstanding. 1987-88 On the morning of October 16, 1987, Mr. Alford failed to report for work to drive school bus No. 340 on its three accustomed runs, necessitating the tardy dispatch of another driver. Later, in response to Mr. Daniels' questions, he explained that Harry Wells, a substitute school bus driver, had agreed to drive for him on the morning of the 16th (among other times), with the understanding that Mr. Alford would drive on a field trip for Mr. Wells. It was to an apparent misunderstanding that Mr. Alford attributed his absence without giving notice or arranging for a substitute on October 16, 1987. At the time, school board procedure required a bus driver who was to be absent for any reason to arrange for a substitute, as Mr. Alford apparently thought he had done, and to report the arrangement to the payroll clerk at the office of the superintendent of transportation. But the agreement went unreported, and no approval of the exchange was ever obtained. On October 26, 1987, Mr. Daniels, then superintendent of transportation, and Patricia Holland, route manager for routes including those Mr. Alford drove, Harry Wells and Mr. Alford gathered to discuss the lack of coverage on October 16, 1987. Mr. Alford told everybody present about his plan to drive on a field trip November 6, 1987, which would necessitate his missing the afternoon runs that day. He said (and Mr. Wells was there to deny it, if it had not been true) that Mr. Wells had agreed to substitute for him on the afternoon of November 6, 1987. Eventually this information reached Janet, who logged in Mr. Wells as a substitute for the afternoon runs on November 6, 1987. On the morning of November 6, however, Mr. Alford failed to appear, again without giving notice and without arranging for a substitute. Again it was necessary to make belated arrangements for another driver. Later that morning, Mr. Alford telephoned to report that his wife had locked him out of his house, and that he had lost access to his personal effects. He said that personal problems had prevented his driving that morning, and explained that, without clothes, he would be unable to drive on the field trip that afternoon, as well. In the afternoon, a substitute drove in his stead, without any report of inconvenience to anybody who went on the field trip. On Monday, February 8, 1988, somebody called from Mowat Junior High School with word that school bus No. 340 had not arrived as of quarter past two that afternoon. Ordinarily, and according to schedule, the bus arrived at the school by two o'clock, was loaded by five past, then left Mowat on the first of three runs the bus made each afternoon. When the report that school bus No. 340 had not arrived at Mowat reached the transportation office, Mr. Carter looked in the bus barn out back and saw that the bus was still there. He himself, despite his supervisory position as route manager for the Rutherford district, made two of the three runs for which Mr. Alford was responsible, while another driver drove children home from Hiland Park school. At no time on Monday afternoon did Mr. Alford communicate with the transportation office or with any of his supervisors or with anybody else employed by the school board. When he reported to work on Tuesday morning, he set out in school bus No. 340, without speaking to anybody in the transportation office. His supervisor, Patricia Holland, called Mr. Griffin, the assistant principal in charge of loading and unloading buses at Mowat and asked him to tell Mr. Alford to telephone. Later in the day Mr. Alford did call. He said he had missed work the afternoon before because, coming back from Tyndall Air Force Base, he had had a flat tire. He said he had given a hitchhiker (who he purportedly picked up just before the problem with the tire) 50 cents for a telephone call and asked him to call the school board's transportation office to say he could not get to work. He also said that he was worried about his wife and believed that she had a tumor in her arm. But nobody had telephoned the day before and, for the third time, respondent was orally reprimanded for not reporting for work and failing to give notice beforehand. At a meeting with his supervisors later in February of 1988, Mr. Alford declined to sign a document reciting these three lapses in his attendance record, although assigning the wrong date to one of them. No contemporaneous, independent, written records of counseling on October 16 and November 6 were prepared. On the morning of April 7, 1988, Mr. Tucker of Mosley High School called at half past seven to report that school bus No. 340 was late. As he spoke, it arrived, although it had been due at 6:55 a.m. Unmollified, Mr. Tucker complained that such a late arrival was disruptive because a number of the children ate breakfast at the school and had to be fed, even if they were late. Respondent's supervisors discussed these matters with him that day, and a record was made of the counseling on April 7, 1988. 1988-89 Before students returned for the next school year, all bus drivers hired for the 1988-89 term attended a meeting. In the future, the school bus drivers were told, they should report to the route manager for their district in an emergency or if, for some other reason, they would be unable to appear for work. Rather than making arrangements themselves, they were advised, they should let the route manager contact a substitute. On the morning of October 12, 1988, at quarter of seven, Clarice Rehberg, the route manager for the Bay High School District (which is not the district in which Mr. Alford's route was located) received a telephone call from Mr. Alford, who said that he was in Pensacola, and that his car had broken down. He also told her that school bus No. 340 was in the shop for repair, so that a substitute driver would need another bus. Finally, he let her know that the first scheduled pickup was to have been five minutes earlier at the cemetery on 17th Street. Despite Ms. Rehberg's prompt action, school children on all three runs to Mosley and Hiland Park were late for school that day. At all pertinent times, school bus drivers, including substitutes, were required to make a pre-trip inspection, which sometimes takes fifteen minutes, before driving a school bus in the morning. The following morning at about five o'clock Ms. Rehberg received a second telephone call from Mr. Alford, who again reported that he was calling from Pensacola. He said that he had called Harvey Childress in hopes that Harvey would substitute for him that morning, but that Harvey told him that he was already driving. As the "barn book" reflected, Ms. Rehberg had already scheduled Mr. Childress to drive Mr. Alford's route, morning and afternoon, just as he had done the day before. It was just as well Ms. Rehberg had the foresight to arrange for Mr. Childress to drive that afternoon because Mr. Alford never showed up. On Thursday, October 13, 1988, at about eight o'clock in the morning, Mr. Enterkin, who also drove a school bus for the Bay County School Board, spotted Mr. Alford and two friends in a car waiting at a stop sign. During the ensuing conversation, Mr. Alford told Mr. Enterkin that he was taking the rest of the week off. He also said something about having to go to Pensacola because he could not get the lights fixed on his new car. On Thursday afternoon, Mr. Alford telephoned Mr. Conway, the new supervisor of transportation, telling him that he was at a service station in Pensacola waiting for money to be wired to fix his car. On October 14, at about eight o'clock in the morning, Mr. Alford called and said that he was ready to go back to work. Mr. Conway asked him to come see him before he reported for any further duties as a bus driver. Missing a three o'clock appointment the following Tuesday, Mr. Alford appeared in Mr. Conway's office at three o'clock on Wednesday, saying that he must have gotten the days mixed up. The conversation between the men was short, to the point, and unpleasant. Mr. Conway suspended Mr. Alford with pay. On October 26, 1988, the school board suspended him without pay. The present proceedings followed.
Recommendation It is, accordingly, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0634 Petitioner's proposed findings of fact Nos. 1 through 5 and 7 through 18 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, it was not clear that he needed approval from anybody other than the substitute at that time. Petitioner's proposed finding of fact No. 19 is properly a conclusion of law. Respondent's proposed findings of fact Nos. 1 through 4, 6 through 9, 15, 16, 23, and 26 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 5, 28 through 31, and 32 pertain to immaterial matters. Respondent's proposed findings of fact No. 10, 14, 17 through 20, 22, 27, and 33 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 11, the evidence did not show any understanding that Mr. Wells had agreed to take the morning run on November 6, 1987. With respect to respondent's proposed finding of fact No. 12, there was no morning route to Perry, and he supposedly stayed with the car. With respect to respondent's proposed finding of fact No. 13 the respondent did not give notice he was going to be absent. The hearing officer has not seen a hearing transcript. With respect to respondent's proposed finding of fact No. 21, the weight of the evidence showed he did not place a call to Ms. Holland on October 12, 1988. With respect to respondent's proposed finding of fact No. 24, the route was not "covered" on time. With respect to respondent's proposed finding of fact No. 25, respondent did not tell Ms. Rehberg in advance that he was not going to report for the afternoon run on October 12, 1989. With respect to respondent's proposed finding of fact No. 34, the evidence demonstrated knowing, intentional disregard of instructions to let people know of impending absences far enough ahead of time for other arrangements to be made. Respondent's proposed finding of fact No. 35 is properly a conclusion of law. COPIES FURNISHED: Jack W. Simonson Superintendent of Bay County Schools 5205 West Highway 98 Panama City, Florida 32401 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Franklin R. Harrison Sale, Smoak, Harrison, Sale McCloy & Thompson Post Office Drawer 1579 Panama City, Florida 32401 Pamela L. Cooper Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue The issue is whether Zelma Goss should be dismissed from her position as a school bus driver for the St. Johns County School Board for the reasons stated in the Formal Petition of Charges.
Findings Of Fact Zelma Goss has been employed as a bus driver by the School Board of St. Johns County since November 1975. During that time, she has had an unblemished record of performance as a bus driver. At about 3:15 p.m. on August 27, 1990, Ms. Goss was completing her afternoon bus route when she heard Debra Sapp call for help over the radio. Ms. Sapp ordinarily does not drive a bus because she was the Route Specialist. On this day, the first day of school, Ms. Sapp had to pick up a bus load of students who had been returned to Ketterlinus Middle School because of severe misbehavior on the bus. Ms. Sapp had to stop the bus one time to separate two boys. A few minutes later the bigger boy returned to the front of the bus and began beating the smaller boy with his fists. Ms. Sapp stopped the bus and tried to stop the fight. She was unable to separate the boys, and as the beating continued she radioed for help and requested assistance from the Sheriff's Department. A couple of minutes later she again radioed for help. After there was no response from other drivers, Ms. Goss contacted Ms. Sapp and asked if she could help. After she finished her route, Ms. Goss went to the location of Ms. Sapp's bus and noticed that there were a number of school administrators and law enforcement officers present and that the students on Ms. Sapp's bus were hanging out the windows, yelling obscenities and otherwise acting completely out of control. Ms. Goss, who was familiar with these students because she had transported them during previous years, got on the bus and attempted to gain control of the students' behavior. She succeeded in calming all of the students down except Joe Bailey, who refused her directions and would not come to the front of the bus to sit. Joe Bailey was removed from the bus by a Deputy Sheriff and instructed to behave. At approximately 4:00 p.m., Ms. Sapp said that she believed that they could proceed to transport the students home and Ms. Goss volunteered to drive. Ms. Sapp went back and sat toward the back of the bus. Joe Bailey was put back on the bus by a Deputy Sheriff and instructed to behave. Ms. Goss had had problems with several of the students on the bus in the past, particularly with Joe Bailey. Ms. Goss' reporting of Bailey's misconduct had resulted in his being suspended from school in the past. The bus route continued uneventfully until Ms. Goss reached the corner of D and 5th Street, at which point the students began to stand up and holler when they saw a brown pickup truck nearby. The truck was driven by a former student, Jason Schofield, who had been a troublemaker. At this point in time, the bus was stopped at the stop Joe Bailey normally exited. Because she was keeping her eye on Mr. Schofield's truck, Ms. Goss did not notice as she pulled away from that stop that Joe Bailey had not gotten off. While she was discussing this matter with Ms. Sapp and stating that Mr. Bailey could get off at the next stop, Ms. Goss noticed Mr. Schofield's truck pulling in behind the bus, tires squealing, having come out so fast that he cut off a white car following the bus. At the next stop, Ms. Goss and Ms. Sapp told Joe Bailey several times to get off the bus. As Mr. Bailey finally moved to leave the bus, he called Ms. Goss a bitch, struck Ms. Goss firmly in the back of the head, and quickly ran off the bus. As she was struck, Ms. Goss instinctively threw up her hands in protection and noticed Bailey making obscene gestures at her and calling her names. Bailey walked in front of the bus, across the road and, standing on the left edge of the road, continued to make obscene gestures and comments at Ms. Goss and dropped his pants, "mooning" her. As she started the bus moving forward, Ms. Goss turned the steering wheel quickly to the left and then immediately back to the right in an instinctive reaction to get Bailey's attention. This movement of the steering wheel lasted approximately two seconds. At the same time, Ms. Goss was yelling out of the window to Bailey that she intended to press charges against him. Ms. Sapp described the motion of the bus by saying, "it went forward very wiggly." The bus quickly crossed the middle line by eight to ten inches and returned to the right lane. Ms. Goss did not steer the bus at Bailey, nor did she intend to strike him with the bus. Furthermore, the bus never came anywhere near hitting Bailey and did not pose any real danger to him. As Ms. Goss was continuing to the next stop, Ms. Sapp began screaming in the back of the bus, "Don't stop." Ms. Goss stopped the bus at the next stop anyway and, as she opened the door, Jason Schofield came up to the driver's window on the left hand side of the bus and began beating on the side of the bus. Schofield said to her, "Lady, what is your problem?" Ms. Goss stated that she did not have a problem and did not say anything else to him. Mr. Schofield returned to his truck and pulled out around the bus, speeding through the stop signal before all of the students had completely crossed the road in front of the bus. Ms. Goss completed the bus run and returned to where she had left her bus. In discussing the situation with representatives of the administration, Ms. Goss admitted swerving the bus, but she did not state that she had swerved the bus at Bailey or in an effort to strike Bailey. For his actions that day, Joe Bailey was expelled for the entire school year. Two students and a passenger in Schofield's truck told their versions of what occurred that day. All three were simply unbelievable and their stories were entirely lacking in credibility. Their testimony is rejected. The passenger's story is impossible and clearly false. The only two people actually on that bus who were credible witnesses were Ms. Goss and Ms. Sapp. Neither testified that Ms. Goss actually swerved the bus at Joe Bailey in any manner which placed him in any danger. St. Johns County School Baord Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows: (11) Relationship to other personnel (c) Pupils (1) The bus driver shall be responsible for the safety of the pupils on his bus and shall be constantly on the alert for any condition that would endanger their safety. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students. A bus driver's primary responsibility is to maintain the safety of the students.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order exonerating Zelma Goss from the alleged misconduct and immediately reinstating her to her position as a school bus driver. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5887 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of St. Johns County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4-6(24-26); 8(2); and 11(21). Proposed findings of fact 7, 9, 10, 12-16, 23-28, and 32 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1, 2 and 29 are unnecessary. Proposed findings of fact 17, 18, 20-22, and 30 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 19 and 31 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Zelma Goss 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2&5); and 3-17(6-20). COPIES FURNISHED: Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street Post Office Box 40089 Jacksonville, FL 32203 Thomas W. Brooks Attorney at Law Post Office Box 1547 Tallahassee, FL 32302 Otis A. Mason, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, FL 32084 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.
Findings Of Fact Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses." Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment contract between the parties also requires Respondent to abide by all state and local laws and rules. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus, while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.
Recommendation It is RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1997. COPIES FURNISHED: John M. Hament Kevin J. Hubbart Kunkel Miller and Hament 1800 Second Street, Suite 970 Sarasota, Florida 34236 Harry A. Blair Harry A. Blair, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 Jack Taylor, Acting Superintendent Lee County Public Schools 2055 Central Avenue Fort Myers, Florida 33901-3988
The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE 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 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
