The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teaching certificate held by the Respondent, Matthew Fontes, based on an Administrative Complaint charging him with violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2014).
Findings Of Fact The Respondent holds Florida educator certificate 1138466, which expires on June 30, 2018. He is certified in guidance and counseling. From 2010 to 2014, he was a middle school guidance counselor at Narcoossee Community School in Osceola County. On October 9, 2013, two Narcoossee students, K.S. and H.F., got into a verbal argument. At the end of school the next day, K.S. got onto the bus and became concerned by the “dirty look” and hard stare H.F. was giving her and thought that more arguing and possibly physical fighting would take place if she stayed on the bus. To avoid a fight, K.S. and her cousin, A.L., got off the bus and went to the school’s administration building for K.S. to call her mother at work to pick them up. K.S. was adamant about not riding the bus, so her mother agreed to leave work and pick them up. K.S. and A.L. then went to find a school administrator. They found the Respondent in his office helping another student, S.W., with a written statement about an unrelated bullying incident. Standing in the doorway to the Respondent’s office, K.S. told the Respondent that she did not feel comfortable riding the bus home because a girl on the bus was giving her “dirty looks” and bothering her, and she was afraid there was going to be a fight. She did not say who the other girl was. She told the Respondent that she had called her mother, who was on her way to drive her and her cousin home, and asked if she could wait in the office for her. The Respondent asked if they were signed up for the after-school program for students who did not take the bus home and was told that they were not. The Respondent noticed Kelly Slade, a paraprofessional at the school, in the hallway and asked her if the office was closed, which it was. The Respondent then told the two students that he could not wait with them because he had an appointment with an air-conditioning repairman, and that they would have to ride the bus. He did not look for or use his school-issued radio to call another administrator. Instead, he led K.S. and A.L. back to the bus loading area. When they got outside the building, the buses were starting to leave the bus loading area. As he was running up to Dustin Sassic, the administrator in charge of buses, the Respondent yelled at him to hold the buses. Mr. Sassic complied with the Respondent’s request. As the Respondent approached Mr. Sassic, the students got on their bus, and Mr. Sassic “rolled” the buses (i.e., signaled to the bus drivers to continue to leave the school). When the Respondent reached Mr. Sassic, he told him there had been a problem, but the Respondent had to leave for an appointment. Mr. Sassic could not recall any specifics about the problem mentioned by the Respondent. The Respondent then walked directly to the teacher parking lot and left school to meet the air-conditioning repairman at his house. Not long after the buses left, H.F. started a fight with K.S. and punched her in the nose, causing it to bleed. The bus driver stopped the bus, and emergency medical services and the sheriff’s office were called. On her way to the school, K.S.’s mother received a telephone call from her daughter and was told what had happened. She then got a call from an emergency medical services technician regarding her daughter’s nosebleed and treatment and the location of the bus. She drove directly to the bus to see to her daughter’s needs. The next day, K.S.’s mother and father went to the school to ask the principal, Dr. Matthew Phillips, why their daughter was not allowed to wait for her under the circumstances, but instead was made to take the bus. At the time, the principal knew nothing about the incident. He followed up on the complaint by talking to Mr. Sassic and initiating an investigation. As a result of the investigation, the Respondent was reprimanded by the Osceola County School District for violating parts of the Principles of Professional Conduct, including rule 6A-10.081(3) regarding protecting students from harm. At the end of the school year, Dr. Phillips decided not to renew the Respondent’s employment contract because of the K.S. incident and other “struggles” in meeting the requirements of his job as guidance counselor at the school. Since then, the Respondent has not been employed as a teacher; he has been employed by his uncle, who has health problems, helping to take care of him and his orchard. The Respondent’s version of the incident on October 10, 2013, was starkly inconsistent with the greater weight of the evidence. He testified that K.S. did not appear to be at all stressed or upset about having to ride the bus and only told him that someone on the bus was bothering her. All the other witnesses confirmed that K.S. was visibly upset, definitely did not want to ride the bus that day, and told the Respondent that her mother was on the way to drive her home. Even if all K.S. said was that someone on the bus was bothering her, the Respondent asked no questions to better understand the situation. The Respondent then testified that he asked Ms. Slade, the paraprofessional, to supervise the cousins while he dealt with the other student in his office and to try to determine the facts and whether the cousins should ride the bus. He testified that he finished with the other student and returned to Ms. Slade and the cousins. He testified that Ms. Slade told him the cousins just said someone was bothering them and that she believed they should ride the bus. Ms. Slade categorically denied that any of this actually took place. Again, even if it happened that way, it would have been incumbent on the Respondent, as guidance counselor, to ask more questions to resolve the matter. The Respondent also testified that he explained the situation to Mr. Sassic, who concurred that the students should be required to ride the bus. Mr. Sassic denied this, and the greater weight of the evidence refutes the Respondent’s testimony. Simply put, the greater weight of the evidence was that the Respondent wanted to leave school to make his appointment with the air-conditioning repairman. This desire led to a poor decision to place the cousins back on the bus without giving the matter adequate attention. He unreasonably took a chance that the threat to K.S. was not credible. This placed K.S. in physical danger. The offices of the school’s other administrators, including the principal, Dr. Phillips, were a short distance from the Respondent’s office. If the Respondent was too busy to help K.S., he should have gone to one of the other administrators for assistance. The Respondent also had a school-issued radio, as did all the administrators at the school, but did not attempt to use it to call for assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending his teacher certificate for six months to impress on him the importance of taking responsibility for his actions and acting in accordance with the Principles of Professional Conduct in general, and rule 6A-10.081(3)(a) in particular. DONE AND ENTERED this 6th day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of January, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee based on the incident that occurred on May 16, 2007.
Findings Of Fact Respondent, Julius Balogh, has been employed with Petitioner, Lee County School Board ("the District"), since October 17, 2002. He is currently assigned as a Bus Operator in the Transportation Department. Respondent's annual contract with Petitioner was renewed for each of the school years: 2003- 2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. Since Respondent commenced working for Petitioner in October 2002, he has received five annual performance assessments. With the exception of Respondent's first year when he received three scores of "inconsistently practiced" out of 32 areas targeted for assessment, Respondent always scores at an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 06/07 performance assessment stated he was "a good worker, helpful, dependable and a joy to work with." On his 05/06 assessment, the assessor wrote in the "comments" section "Great job. Julius takes personal satisfaction in job and cares about his students. Continues to grow." During the five years Respondent has been employed with Petitioner, he has had a perfect attendance record. Aside from the present charges, he has never before been the subject of any disciplinary action. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statues (2007), and is governed by the Collective Bargaining Agreement between the School Board and the Support Personnel Association of Lee County ("SPALC"). The standard for the discipline of support personnel is "just cause," pursuant to Article 7 of the SPALC Agreement. On May 16, 2007, Respondent reported for duty at 4:49 a.m. He completed his morning shift at 10:07 a.m. He was then required to submit to a random drug and alcohol screening, which he passed. After dropping-off all students at their bus stops, Respondent was returning to the bus compound while following his regularly-scheduled route. While on duty and in uniform, Respondent parked his bus in front and entered the San Carlos Package Store. Respondent's stated reason for entering the store was for the intended purpose of purchasing an herbal extract product called St. Hubertus for his wife. St. Hubertus is an herbal product that Respondent's wife administers to herself daily, in her evening cup of tea, to alleviate digestive problems and stomach pain resulting from various medications she is prescribed. St. Hubertus is 35 percent alcohol by volume. Respondent and his wife regularly purchase St. Hubertus while visiting their country of origin, Hungary. Edith Balogh returns there annually for medical treatment. Edith Balogh's Hungarian physician first recommended St. Hubertus for her some 10 to 15 years ago to relieve her stomach pain. Edith Balogh had exhausted her annual supply of St. Hubertus sometime prior to May 2007. Although she and Respondent were scheduled to fly to Hungary on May 21, 2007, she was experiencing severe stomach pain and related symptoms. She, therefore, had asked her husband to attempt to procure the product locally. Respondent unsuccessfully sought to obtain the product at several stores prior to May 16, 2007. Ultimately, Respondent was told by a pharmacist that he might be able to find the product at the San Carlos Package Store. Since the San Carlos Package Store was located on Respondent's direct route to the bus compound, and because the weather was intemperate, Respondent did not want to backtrack after concluding his shift. Respondent decided to stop at the San Carlos Package Store for the purpose of purchasing the St. Hubertus product. Before stopping at the package store that day, Respondent had not used either of his two 15 minute breaks. He stopped at the store at approximately 6:45 p.m., clocked out of work at 7:17 p.m., and drove the approximately four miles from the store to the compound before clocking out. Respondent thus did not exceed the personal time Petitioner otherwise allowed its employees for their daily breaks. When Respondent inquired about the availability of St. Hubertus, the sales clerk advised him that he would have to order it and it would take three to six weeks to receive it. Respondent explained the urgency of obtaining the product, and the clerk recommended a similar product called "Jagermeifter." Respondent purchased two 50 ml bottles of Jagermeifter. The label on the bottles of Jagermeifter were in German and English. Respondent speaks German. The label described the product in German as "noble herb tea extract." The label also stated, in English, that the product contained 35 percent alcohol by volume (70 Proof). Respondent purchased the two bottles of Jagermeifter, placed them in a ziplock bag, secured them in his briefcase, and returned to his bus. Respondent then drove directly to the bus compound. As Respondent was pulling into the compound he received a cell phone call from the afternoon supervisor, Robert Schwartz, advising him that he was observed purchasing liquor and that he was suspended from operating the bus. Respondent clocked out and went home. Joe Howard, another supervisor, checked Respondent's bus for open alcohol containers the following day and found no such evidence. As had previously been approved, Respondent did not return to work prior to his departure for Europe. Respondent took the Jagermeifter product home with him on May 16, 2007, and presented it to his wife. Edith Balogh used the Jagermeifter as a substitute for St. Hubertus, and while it was not as effective as St. Hubertus, the Jagermeifter product did help to alleviate her stomach pain. Respondent testified that he believed he was purchasing a medicinal product, not an alcoholic beverage, when he bought the two small bottles of Jagermeifter. Respondent credibly explained that the reason he purchased the product was not for personal consumption, but for his wife's medicinal use. Respondent testified that he no longer consumes alcohol. Edith Balogh, Respondent's wife of 54 years, confirmed that Respondent does not drink alcohol and has not consumed any for approximately 45 years. Joe Howard's (Howard) testimony relating to Respondent's alleged admission that he would often purchase a "medicinal" product for his and his wife's consumption is not reliable. He did not make notes of the conversation, which occurred some eight months before the hearing. He offered conflicting testimony about who was present when the conversation occurred and was imprecise about whether Respondent admitted to regularly consuming Jagermeifter or whether he merely was admitting to intending to consume one of the bottles of the product purchased on May 16, 2007. Howard also failed to mention the alleged admission in the course of Petitioner's investigation. The greater weight of the evidence supports the testimony of Respondent and his wife that Respondent does not consume alcohol. Therefore, there is insufficient evidence to believe that Respondent intended to consume any of the Jagermeifter himself. Although Respondent's motive for purchasing the Jagermeifter product was for a medicinal purpose to alleviate his wife's chronic stomach pain, the product was not sold in a drug store as an over-the-counter medicinal product. The product was marketed and sold as an "alcoholic beverage" in a package store. The words on the label, "noble herb tea extract," were only written in German. Respondent parked the school bus in front of the package store, entered the package store while in uniform, purchased an alcoholic beverage, took it back to his bus, and returned to the bus compound, all while on duty. Respondent's stated reason that he did not first return the bus, clock out, and then return to the package store in his own vehicle was because it was raining and he was in a hurry to get the product home to his wife, is unsatisfactory. Respondent's effectiveness in the school system was impaired by purchasing the product while on duty and in uniform and returning with it on the bus to the compound. Respondent was in possession of alcohol under circumstances that would affect the efficient operation of the District's business or the safety of its employees and students or the public. Petitioner has adopted disciplinary guidelines for transportation employees. Under the facts of this case, the proper penalty for Respondent's misconduct in this case is disciplinary action up to and including termination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is Recommended that Petitioner, Lee County School Board enter a final order dismissing/terminating Respondent, Julius Balogh, from his position as an employee with the Lee County School District. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008.
Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made are made to supplement and clarify the stipulations of fact set forth in the parties' January 11, 2002, Stipulation: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since October of 1992. She is currently under suspension pending the outcome of this disciplinary proceeding. Respondent was initially employed as a substitute bus driver. Since March of 1993, she has held a regular school bus driver position. At all times material to the instant case, Respondent was assigned to the School Board's Southwest Transportation Center (Center). Mary Murphy has been the director of the Center for the past seven years. Since August of 1999, Aned Lamboglia-Candales has been the Center's coordinator. As such, she "monitor[s] all attendance at the [C]enter" and assists Ms. Murphy in dealing with personnel problems at the Center. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus driver employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3., of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . Article IX, Section 4.A., of the AFSCME Contract addresses the subject of "newly-hired employees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Article IX, Section 13., of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1. of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2. of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4. of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME , Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . According to Article V, Section 18., of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27., of the contract, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], and [p]olic[ies]" and, if she does not, she may be disciplined.1 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board drivers and aides are governed by the following "[a]ttendance [p]olicy": Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave2 -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. Pre-2000-2001 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 1, 1999, Ms. Lamboglia-Candales held a Conference-for-the-Record with Respondent to discuss Respondent's "unauthorized absences since March of 1999." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record during this year and it was held to review your unauthorized absences since March of 1999 when the first conference was held. . . . During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . Since the conference in March of 1999 you have incurred approximately thirty (30) days of unauthorized leave without pay. This administrator also informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to the fact that you suffer from migraine headaches, high blood pressure as well as another medical condition that requires surgery to remove some growths. The medication that you take prevents you from driving since it makes you drowsy. You also stated that you do not always go to your physician's office for treatment. You provided this administrator with documentation of one of the medications you take as well as the names of the physicians that treat you. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were also instructed to provide this administrator with documentation regarding your condition or treatments. Also, whenever you have a medical appointment to provide documentation verifying those. ACTION TO BE TAKEN This administrator will continue to monitor your attendance. A supervisory referral to the district support office was not done on your behalf since Ms. Ramsby, AFSCME Representative stated on your behalf that it was not necessary. Also please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the collective bargaining agreement between the School Board and AFSCME that were referenced in the memorandum. On March 1, 1999, Respondent received a verbal warning from Ms. Lamboglia-Candales concerning Respondent's "unauthorized leave." That same day, Respondent was presented by Ms. Lamboglia-Candales with a written Transportation Operations Procedures Reminder reflecting that Respondent had received the aforementioned verbal warning and directing Respondent to review Article V, Section 27., and Article XI, Section 4.B., of the collective bargaining agreement between the School Board and AFSCME. On May 3, 2000, Ms. Lamboglia-Candales issued Respondent a written warning concerning Respondent's "unauthorized leave." When the written warning was presented to Respondent on May 23, 2000, she refused to sign it. On July 21, 2000, Ms. Lamboglia-Candales held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Ms. Lamboglia-Candales subsequently prepared and furnished to Respondent a memorandum in which she summarized what had transpired at the conference and what "action [would] be taken." Ms. Lamboglia-Candales' memorandum read, in pertinent part, as follows: CONFERENCE DATA This Conference-For-The-Record was held to review your unauthorized absences since . . . August 30, 1999. It was originally scheduled for June 9, 2000 but since you were not available that day it was re- scheduled for this day. During this conference you were provided with a copy of your leave history and this administrator reviewed it with you. . . . You received a verbal warning on March 1, 2000 and a written warning on May 23, 2000. . . . Since August 30, 1999 you have incurred approximately thirty-five unauthorized days (35) of leave and twenty-five (25) authorized days. You have been absent from work a total of seventy (70) days in one school year which is approximately ten months or 181 work days for employees in your bargaining group. You stated that many of your unauthorized absences were due to the fact that you have medical problems (high blood pressure). You also stated that the medication you are taking is not keeping it under control but your physician was going to change it to see if it helped. You also mentioned that you were considering taking a temporary demotion to a bus aide position until you felt better. You presented documentation for some of the days you have been absent and this administrator reviewed it. She reminded you that all documentation regarding absences should be brought in as soon as the absence occurs and not months later. . . . ACTION TAKEN This administrator reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . She also informed you that if you decided to take the voluntary demotion to bus attendant you could discuss this with her at a later date. ACTION TO BE TAKEN This administrator will do a supervisory referral to the district support agency at this time and will continue to monitor your attendance. Also you are informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. As promised, Ms. Lamboglia-Candales referred Respondent to the School Board's Employee Assistance Program on July 25, 2000, and advised Respondent of the referral on that same date. Approximately a week after the July 21, 2000, Conference-for-the-Record, Respondent told Ms. Lamboglia- Candales that her physician had changed her medication and that the new medication "was working" and her "blood pressure was fine." As a result, she told Ms. Lamboglia-Candales, she was not going to pursue the temporary demotion to bus aide that she had previously discussed with Ms. Lamboglia-Candales. The 2000-2001 School Year On February 1, 2001, Ms. Lamboglia-Candales, along with Charlie Horn, an administrative assistant at the Center, held another Conference-for-the-Record with Respondent to again discuss Respondent's "unauthorized absences." Mr. Horn subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference and what "action [would] be taken." Mr. Horn's memorandum read, in pertinent part, as follows: CONFERENCE DATA This is your second Conference-For-The- Record in the past twelve months during this year and it was held to review your unauthorized absences since July 21, 2000 when the other conference was held. . . . During this conference you were provided with a copy of your leave history and Ms. Candales reviewed it with you. Since the conference on July 21, 2000 you have incurred approximately fifteen (15) days of unauthorized leave without pay. Ms. Candales informed you that this is considered excessive since the number of days worked by employees in your bargaining unit is approximately 181 days in ten months. You stated that these unauthorized absences were due to dentist and court appointments. You provided Ms. Candales with documentation to review. . . . Ms. Candales reviewed it in your presence and determined that approximately 15 days of unauthorized leave could have been authorized had you presented the documentation at the time the absence occurred. ACTION TAKEN Ms. Candales reviewed with you Article V, Section 27 and Article XI, Section 4 of the bargaining agreement between M-DCPS and AFSCME and informed you that failure to show improvement could lead to further disciplinary action. . . . You were once again instructed to provide Ms. Candales with documentation regarding your appointments and/or absences. It is important that you present your documentation in a timely manner meaning as soon as the absence occurs and not months later. ACTION TO BE TAKEN Ms. Candales will continue to monitor your attendance. A supervisory referral to the district support agency will not be done at this time. Also, please remember that you have the right to append, to clarify, or to explain any information recorded in this conference by this summary. Among the documents appended to the memorandum were copies of the provisions of the AFSCME Contract that were referenced in the memorandum. On March 29, 2001, the Center's director, Ms. Murphy, held a Conference-for-the-Record with Respondent to discuss "her job performance as related to [her] attendance." Ms. Murphy subsequently prepared (on April 23, 2001) and furnished to Respondent (on May 3, 2001) a memorandum in which she summarized what had transpired at the conference. Ms. Murphy's memorandum read as follows: A Conference-For-The-Record was held in the office of the director of Southwest Regional Transportation Center on Thursday, March 29, 2001. The following were in attendance, Ms. Linda Hogans, Bus Driver, Ms. Joyce Moore, AFSCME, Ms. Carolyn Ransby, AFSCME, Ms. Dorothy Ferguson, Administrative Assistant, and Ms. Mary E. Murphy. The purpose of this conference was to review your job performance as related to your attendance. You were given a copy of your leave history, which was reviewed during the conference. Since the beginning of this school year, you have accumulated 27 unauthorized absences. The original total was 44 days and after reviewing the medical documentation you provided during the conference, the amount of days was changed to a total of 27 unauthorized days. Ms. Moore questioned the conference held by Mr. Horn and Ms. Candales when you presented documentation but Ms. Candales did not accept the documents. The days have been approved and the total days have changed again to 15 and a half unauthorized days without pay. You were asked why you had accumulated so many unauthorized days? Ms. Moore stated that at one time you were caring for a cousin who could not care for [her]self. This cousin later died. Also, you had [a] death in the family and you have been injured on the job, which plays a big part with your absences. You indicated that you have high blood pressure and you doctor tried several different medications to maintain control. You indicated that there are times when you do not feel well so you stay home. I asked if your doctor supplied you with notes? You indicated that the doctor would give you some notes but not all of the time. I explained that when you present documentation, those days would be authorized. Ms. Moore asked if you had previous conferences. I answered yes that Ms. Hogan[s] has had a couple of conferences. During one of the conferences held by Ms. Candales, you were advised to present documentation directly to her so your absences could be authorized. Ms. Candales held a conference with Ms. Hogan[s] on July 21, 2000. This conference was held during the summer months but the conference did not include unauthorized days accumulated during the summer. Ms. Ferguson stated that the conference was held in July because several attempts were made to have the conference in June and Ms. Candales was not able to conduct the conference due to the amount of days you were off. During the conference you were directed to: To come to work and be on time. If you need to be off, present documentation to Ms. Candales or myself. If either the Coordinator or Director is not available, give the documentation to the Administrative Assistant on duty. You signed a supervisory referral to the District Support Agency. You were told that the summary of this conference would be forwarded to Mr. Jerry Klein, Administrative Director and the Office of Professional Standards for review for possible disciplinary actions not excluding dismissal. Also you were informed that you have the right to append, clarify, or explain any information recorded in this conference by this summary. Ms. Moore stated that going to District support is not all bad [in] that the district has many programs to help employees. It is not just for disciplinary problems. I mentioned that during the yearly in-service District Support is discussed and explained to the employees. Ms. Moore stated that in the in-service meeting there is so much noise that no one can hear. Ms. Hogan[s] said that she was not aware of the program. I checked her file and found out that Ms. Candales referred Ms. Hogan[s] in July 5, 2000. Ms. Hogan[s] declined to participate. By signing (on March 29, 2001) the "supervisory referral to the District Support Agency" mentioned in Ms. Murphy's memorandum, Ms. Hogans signified that she had "been advised of the referral." Following the March 29, 2001, Conference-for-the- Record, Respondent continued to have unauthorized absences. On June 7, 2001, Barbara Moss, a district director in the School Board's Office of Professional Standards, held a Conference-for-the-Record with Respondent to discuss her absenteeism and her "future employment status" with the School Board. Ms. Moss subsequently prepared and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. In the "Action To Be Taken" portion of the memorandum, Ms. Moss stated the following: Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Associate Superintendent of School Operations, the Administrative Director of Transportation, and the Director of Southwest Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review, with endorsement by the Associate Superintendent, will compel formal notification of the recommended disciplinary action. All disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. Ms. Moss provided Respondent the opportunity, following the Conference-for-the Record, to present documentation concerning any unauthorized absence that Respondent believed should be excused. Respondent took advantage of this opportunity and provided Ms. Moss with five or six letters from the Office of the Miami-Dade State Attorney asking that Respondent's absence from work on various dates be excused because she was "subpoenaed to the Office of the State Attorney" on those dates in connection with a criminal case, State v. China Wilson, Case No F00-21153, in which she was an "essential witness." Upon reviewing the letters, Ms. Moss noticed that there were "obvious" alterations on "a couple of the letters." Dates had been typed in over "white-out" and they "were jammed together." Ms. Moss faxed to the Office of the Miami-Dade State Attorney copies of all of the letters she had received from Respondent following the June 7, 2001, Conference-for-the-Record and inquired whether these letters were authentic. Ms. Moss was told by the assistant state attorney assigned to the State v. China Wilson case that "there was only one letter that was authentic." Ms. Moss subsequently met with Respondent, who was accompanied during the meeting by the senior vice president of AFSCME, Christine Harris, and an AFSCME shop steward, Charlie Lynch. Ms. Moss "showed them the [letters she had received from Respondent] and let them know that [the School Board was] moving forward with dismissal." In response to this advisement, either Respondent or Ms. Harris indicated that Respondent wanted to resign in lieu of being terminated and that she would like to have the aforementioned letters returned to her. Ms. Moss gave Respondent back the letters (without making copies of them). Respondent then left. A few minutes later, Respondent returned and indicated that she was "rescind[ing] her offer to resign." On August 10, 2001, the Superintendent of Schools sent a letter to Respondent advising her that he was recommending that the School Board, at its scheduled meeting on August 22, 2001, "suspend [her] and initiate dismissal proceedings against [her] effective the close of the workday, August 22, 2001, for just cause, including, but not limited to: excessive absenteeism; non-performance and deficient performance of job responsibilities; and violation of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves." At its August 22, 2001, meeting, the School Board took the action recommended by the Superintendent of Schools. On more than one occasion during the 2000-2001 regular school year, Respondent had three or more consecutive workdays of unauthorized absences. The regular school year workdays during the 12-month period ending June 1, 2001, on which Respondent had unauthorized absences include (in addition to those set forth in the parties' January 11, 2002, Stipulation) the following: June 6, 2000 (whole day); June 9, 2000 (whole day); November 9, 2000 (whole day); December 15, 2000 (whole day); January 30, 2001 (half day); February 5, 2001 (whole day); May 25, 2001 (half day); May 30, 2001 (whole day); May 31, 2001 (whole day); and June 1, 2001 (whole day). Respondent also had numerous authorized absences (with and without pay) during the 12-month period ending June 1, 2001. From August 24, 2000, through May 24, 2001, she had 41 1/2 workdays of authorized absences without pay and ten and a half workdays of authorized absences with pay. Many of the authorized absences without pay were initially unauthorized absences, but they were converted to authorized absences without pay following the review of documentation provided by Respondent. The refusal of School Board administrators to excuse any additional unauthorized absences was within their sound discretion. They were under no obligation to do so. They acted reasonably, given Respondent's failure to present in a timely manner credible documentation demonstrating that these additional unauthorized absences were the result of extenuating circumstances and further considering Respondent's pattern of excessive absences. Respondent's excessive absences had an adverse impact on the Center's operations. As Ms. Murphy explained during her testimony (at page 158 of the hearing transcript): "[W]henever . . . a driver has a route and [the driver] take[s] off, then we have to place a substitute or a stand-by driver on it. And whenever that occurs, the route automatically runs late, because the regular driver[] knows the route better than the substitute driver or stand-by driver[].
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board pursuant Article XI, Section 4.B., of the AFSCME Contract. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2002.
The Issue As stipulated by the parties, the issue in this case is whether there is “just cause” to terminate the employment of Patricia Davis.
Findings Of Fact The School Board employs Ms. Davis as a bus paraprofessional. Ms. Davis has satisfactorily served the School Board as a bus paraprofessional for approximately ten years, without any significant discipline. Ms. Davis is a continuing status employee. Ms. Davis is covered by the CTA-CU bargaining unit Collective Bargaining Agreement (CBA). During the 2009-2010 school year, until February 8, 2010, Ms. Davis was assigned to regularly work on bus number 2407. Ms. Marvel Ann Figueroa was the driver regularly assigned to bus number 2407. During the 2009-2010 school year, Ms. Davis was assigned to supervise Exceptional Student Education (ESE) students during transport to and from school on bus number 2407. During the 2009-2010 school year, until February 8, 2010, C.P.2/ was regularly transported on bus number 2407, to and from Palm Pointe Educational Research School (Palm Pointe). C.P. is a student with autism. During the 2009-2010 school year, until February 8, 2010, C.P. was under Ms. Davis’ supervision during transport on bus number 2407. Ms. Davis was aware that C.P. was non-verbal. Ms. Davis recognized that student C.P. was an ESE student with autism. Ms. Davis knew that C.P. was required to use a safety harness/E-Z vest during transport. As required by School Board rules, C.P.’s Emergency Information ESE Bus Form was provided to the staff on bus number 2407, and located on the bus on February 8, 2010. The form provided minimal information. It provided family information and contact numbers. A block labeled "Non-verbal" is checked. In a space labeled "Special instructions for Dealing with Student," one word appears: "Autism." In the "Special Bus Equipment" section, "E-Z on Vest" is checked. School officials knew that within the past two years C.P.’s behavior included vigorous head banging. They also knew that within the past two years C.P. had worn a protective helmet. C.P.’s educational plans included techniques developed to manage head banging and other self-injurious behavior. The school did not inform Ms. Davis of the history of head banging or of the risk of the behavior. This information did not appear on the ESE form. The School Board did not provide the bus with a helmet or other protective or cushioning gear. On February 8, 2010, Ms. Davis was working on bus number 2407. On the morning of February 8, 2010, before boarding students, Ms. Davis performed the pre-trip inspection required by her job duties. It included verifying that the seat belts were securely attached to the seats and that all seat belts were in working condition. Ms. Davis was not feeling well that morning. But she chose to work rather than call in sick. This was poor judgment that contributed to the events of the morning. Ms. Davis and the driver, Ms. Figueroa, discussed Ms. Davis’ illness. They agreed that Ms. Figueroa would get off the bus to escort the children to their seats. This service was a responsibility of Ms. Davis, the bus paraprofessional. On the morning of February 8, 2010, Ms. Davis sat at the front of the bus. Her training and instructions said that the aide was to sit at the back of the bus. But the Transportation Director had repeatedly approved seating charts for the bus that showed Ms. Davis sitting at the front. Consequently, the School Board had authorized Ms. Davis to sit in the front. Ms. Davis’ job duties also required her to constantly monitor the students. Although Ms. Davis periodically looked around to check on the students, she did not maintain a constant view of them. Due to her illness, Ms. Davis struggled to stay awake. Her head nodded and her eyes periodically closed momentarily. Ms. Davis was fighting sleep. She never fell completely asleep. But she did not maintain constant observation of the students. C.P. and three other students were riding bus number 2407 on the route to Palm Pointe the morning of February 8, 2010. Ms. Figueroa properly placed C.P. in his E-Z vest and secured him by his harness in the middle seat of his bus seat row. He was not seated beside the window. During the ride to Palm Pointe, C.P. became upset. He began engaging in self-stimulatory behavior, looking out the window, shaking his hands, and rocking back and forward in his seat. The self-stimulatory behavior was intermittent. This behavior, while often and typically exhibited by autistic children, was more vigorous behavior than C.P. had previously exhibited while riding the bus. As the drive to Palm Pointe continued, C.P. began to hit his hands and then his head against the side of the bus and the bus window. He rocked back and forward in his seat. He leaned and rocked from side to side as he banged his head on the bus window. This behavior continued for about eight minutes. Before that day, C.P. had never exhibited those behaviors while riding the bus. On February 8, 2010, C.P. had been riding bus number 2407, since the beginning of the school year, about six months earlier. Ms. Davis and the bus driver noticed the behavior quickly. They were very concerned about C.P.'s behavior and safety, as well as the safety of the other children on the bus. The bus driver could not pull over, because of the traffic conditions and restrictions resulting from the roads on which she was driving. Ms. Davis did not move C.P. farther away from the window. Unfastening C.P. from his harness and attempting to move him would have been dangerous for him and for the others on the bus. Ms. Davis and Ms. Figueroa were panicked and frightened. They discussed what steps they could take. They were hesitant to physically approach C.P. because they remembered being told in training that physical efforts to control a child with autism would likely cause them to become more violent. Ms. Davis’ training required her to seek help from a manager if she did not know how to handle a situation. Throughout the bus ride on February 8, 2010, as the situation worsened, Ms. Davis never used the available cell phone to seek assistance from a manager. Near the end of the ride, C.P.’s head banging broke the window and cut C.P. He began bleeding, but not profusely. Ms. Davis got the phone number of C.P.’s mother from the ESE form and called her. C.P.’s mother asked them to continue to the school and said she would meet them there. Ms. Davis’ call for assistance came too late. Her failure to promptly seek assistance was a neglect of her duties and a failure to exercise sound professional judgment. As the bus pulled in and stopped at the school, C.P. calmed. Ms. Davis approached him and comforted him verbally and physically. Other school employees boarded the bus and escorted C.P. off where his mother met him. The emergency intervention duties of a bus paraprofessional, like Ms. Davis, include providing ESE students physical assistance, if needed, during an emergency. Ms. Davis had seen C.P. mildly agitated before February 8, 2010. But there is no persuasive evidence that his actions included banging his head against the window or anything else, or that he had previously engaged in any self-injurious activities in Ms. Davis' presence. C.P.'s activities when agitated had included rocking, jerking, rubbing his fingers together, and humming. These are all typical self-calming behaviors shown by individuals with autism. They were not unusual for a student with C.P.'s disability. The behaviors were to be expected and would not have triggered concerns sufficient to report the behavior. In the past when C.P. became agitated, Ms. Davis had calmed him by offering cookies and speaking quietly to him. On February 8, 2010, these techniques worked briefly. C.P. paused his head banging, but then resumed. During Ms. Davis’ ten years of employment, the School Board provided her 92 hours of job-related training, an average of 9.2 hours per year. Of that, 20 hours were her initial training. Ms. Davis attended the classes and successfully completed them. The instruction covered a wide range of topics including equipment, procedures for emergencies, such as traffic accidents, school board policies, and employee relations. The training provided by the School Board included initial and refresher training in Crisis Prevention Intervention (CPI). Ms. Davis' most recent CPI training was August, 2007. She successfully completed it. The CPI training is general and addressed a range of situations. It includes training in verbal and non-verbal techniques. The techniques range from soothing and calming to physical restraint. There is no persuasive evidence that any of the CPI or other training specifically addressed the unique problems and dangers presented by a student in need of physical restraint in a moving vehicle. The testimony of School Board witnesses who reviewed the video tape of the incident and the reports highlighted the difficulty of the situation. The School Board witnesses believed that C.P. was sitting in a window seat and said Ms. Davis should have relocated him. Other School Board witnesses, and common sense, more reasonably maintained that trying to relocate a physically agitated student in a moving bus would endanger him and the other passengers. The CPI training did not include techniques specific to the unique issues presented by students with autism. It did not provide information about how to address head banging or suggest techniques such as cushioning the blows’ impact when a person is banging his head against a hard object. Typically, the school’s training involved two days of in-service presentations about general issues, transportation, student and personnel issues, including School Board policy, equipment, safety, and duties of bus drivers and aides. The training in aggregate provided little specific information about students with autism and nothing useful about ways to manage behavior such as that exhibited by C.P. on February 8, 2010. The School Board provided Ms. Davis training in non- violent crisis intervention. It involved techniques for dealing with children who are acting out in an aggressive or violent manner. The training did not emphasize or focus on issues involving behavior of students with autism. It presented techniques as equally applicable and effective for all student populations, including ESE students with autism. The training, however, provided that employees should call their manager for assistance when faced with a problem they cannot handle. Autism presents widely varied types of behavior. The crisis intervention techniques suggest engaging students in conversation and establishing a relationship with them through verbal interaction. This is not particularly useful or instructive in dealing with situations concerning non-verbal children. One of the district's training documents is titled "How well do you KNOW YOUR EQUIPMENT ?????." This training document is a representative sample of the training material that the district relies upon as having prepared Ms. Davis for the student's head banging. The information it provided did not. This is all the document had to say about possible behaviors of children with autism and how to react to them. Child may not be able to voice his/her discomfort, this may be apparent by different types of behavior: Rocking Banging with head or hands Biting Yelling, etc. In retrospect things could be fine, and child may exhibit inappropriate language and behavior. Modification training may be required to minimize their actions and reactions, to a more acceptable behavior. DON'T TAKE IT PERSONALLY The information in other training materials is similarly non-specific and not helpful in the emergency Ms. Davis faced. The CBA states: “[a]ny member of the Classified Unit may be dismissed by the School Board during his/her term of appointment, when a recommendation for dismissal is made by the Superintendent, for “just cause.” The CBA defines “just cause” to include “insubordination; neglect of duty; unsatisfactory work performance; and violation of School Board Policy and/or Rules . . .”. School Board Rule 6.301(3)(b), provides a non-inclusive list of infractions that support disciplinary action. They include: neglect of duty; violation of any rule, policy, or regulation; sleeping during working hours; violation of safety rules; violation of the Code of Ethics of the Education Profession; violation of the Principles of Professional Conduct for the Education Profession; violation of the Standards of Competent and Professional Performance; and violation of the Code of Ethics for Public Officers and employees. The Code of Ethics of the Education Profession in Florida (Florida Administrative Code Rule 6B-1.001), and the Principles of Professional Conduct for the Education Profession in Florida (Florida Administrative Code Rule 6B-1.006) require Ms. Davis to have concern for the students as her primary professional concern; to seek to exercise the best professional judgment and integrity; and to make reasonable efforts to protect students from harmful conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Respondent, Patricia Davis, from employment for a period of one year, starting November 9, 2010. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 1st day of November, 2011.
