The Issue The issues in this case are whether Respondent violated Sarasota County School Board policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District and, if so, whether Respondent's employment with the Sarasota County School Board should be terminated.
Findings Of Fact The School Board is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Mr. Witt is the superintendent of schools for the Sarasota County School District. At all times relevant, Ms. Jones was employed with the School Board by contract as a school bus driver. In that capacity, Ms. Jones was classified as a non-professional and non-administrative contract employee of the School Board's transportation department. She agreed to accept the contractual appointment (school bus driver) to perform such duties and services as may be required to comply with all laws of the State of Florida and rules and regulations made by the School Board. The School Board's transportation department operated a bid policy for its school bus drivers. Under the School Board's bid policy, each school bus driver was afforded an opportunity to bid (make a written selection of a particular school bus route) on the school bus route for the forthcoming school year. At the start of the 2003-2004 school year, Ms. Jones bid upon and was awarded the Oak Park School (Oak Park) bus route. Oak Park was attended by elementary through high school-aged exceptional students or exceptional student education ("ESE") students, as defined under Section 4.12 of the School Board's policies manual. Ms. Jones was assigned bus number 9615. The first responsibility of the school bus driver is the safe operation of the school bus, and the second responsibility is providing discipline to those who are transported. In October of the 2003-2004 school year, Susan Snyder (Ms. Snyder) was assigned to work on school bus number 9615 as the school bus attendant. A school bus attendant's primary responsibilities are to ensure the safety of and provide care to the students that are being transported on the bus and to minimize distractions to the school bus driver caused by the students while being transported. The students who were being transported by Ms. Jones to Oak Park have behavioral issues, are physically handicapped, and/or have been unsuccessful at other schools within the Sarasota County School District. At various times during the 2003-2004 school year, between eight and 12 students between the ages 14 and 17 rode the bus driven by Ms. Jones. Four of those students were L.J., M.N., N.K., and J.M. The collective testimonies of these four witnesses established that they frequently used profanity on the bus in their daily conversations with each other and in their daily conversation, in the context of discipline, with Ms. Jones. The students would routinely yell among themselves and at Ms. Jones, and she, in return, would yell at them. When Ms. Jones told the students to do something, "sit down," "stop playing around," or "don't open the windows on the bus," the students refused to obey, and Ms. Jones would threaten the students with physical violence. Those threats would elicit like-kind responsive threats from the students. The evidence is inconclusive for the purpose of identifying specific profanity uttered by a specific student. However, the evidence is clear that an exchange of profanity occurred between Ms. Jones and the students identified in paragraph 4 hereinabove. At some unspecified time, but prior to December 9, 2003, Ms. Jones had previously and repeatedly instructed the students to leave the bus windows up while traveling. As they were traveling down Interstate 75 (I-75), N.K., ignoring Ms. Jones' previous instructions to leave the windows up, began lowering the window. Ms. Jones observed N.K.'s actions and repeated her instructions to leave the window up. She was unable to stop on the interstate, but when she reached the Fruitville, I-75 exit, Ms. Jones exited the interstate and stopped the bus. She then turned off the engine, got up from the driver's seat, and went to N.K.'s seat where she pushed N.K., and N.K. pushed her back. The shoving back and forth between Ms. Jones and N.K. ended with Ms. Jones slapping N.K. At the end of her bus run for that day, Ms. Jones reported the incident by a Student Discipline Referral Report. N.K. told his mother of the incident, and she informed Oak Park administration. After consideration of all the facts, Oak Park administration disciplined N.K. for his conduct on the bus. It is found that Ms. Jones willfully violated the School Board's policy by slapping N.K. The "Yugioh" playing cards incident The students would play a card game known as "Yugioh." The cards belonged to L.J. Ms. Jones had previously instructed the students not to play "Yugioh" on the bus because of the disturbance the game caused, and she specifically instructed L.J. not to bring his "Yugioh" cards on the bus. On December 9, 2003, L.J. and other students, with disregard of Ms. Jones' previous instruction not to play "Yugioh" on the bus, were again playing "Yugioh." Ms. Jones asked them to stop, and they ignored her. She asked L.J. to bring the cards to her, and he refused to obey her request. When she reached the stop sign at the intersection of South Briggs Avenue and Bahia Vista Street, in Sarasota County, Florida, Ms. Jones stopped the bus, turned off the engine, and approached L.J. where he was seated. An argument ensued, which was accompanied by Ms. Jones' attempt to take the cards from L.J. and his refusal to relinquish his cards. During this altercation, Ms. Jones struck L.J. about his head, shoulders, and face. She pinched his cheeks. L.J. and Ms. Jones exchanged vulgar insults back and forth. Ms. Jones told M.N., another student, to grab L.J.'s "titties" and pinch them, and he did so. It was noted that L.J. has a large body with an extraordinary fleshly chest. After the "tittie"-pinching incident, L.J. asked to be let off the bus at that location, which was not his usual bus stop, and Ms. Jones, as she returned to the driver's seat, initially refused to do so. After sitting in the driver's seat, Ms. Jones granted L.J.'s request to exit the bus at the intersection of South Briggs Avenue and Bahia Vista Street. It is found that Ms. Jones did not violate the School. Board's policy by permitting L.J. to get off the bus at a location other than his normal pick up and exit stop. Drivers are not allowed to prevent a student from getting off the bus; they can only call transportation dispatch and report the student by name and the location the student got off the bus. It is found that Ms. Jones did, however, violate the School Board's policy when she struck L.J. and when she requested and encouraged another student to inappropriately touch L.J.'s chest. When he arrived home, L.J. reported the bus incident to his parents, and they immediately registered a complaint against Ms. Jones with Oak Park administration. Two days later, December 11, 2003, L.J.'s father, L.J., Sr., filed a police report with the Sarasota County Sheriff's Department. An officer investigated the matter on December 19, 2003, by interviewing only L.J. and Ms. Snyder. Based upon those two interviews, the investigating officer recommended that the charge of battery be filed against Ms. Jones. There is no further evidence of record regarding the battery charge recommendation made by the investigating officer. The School Board's transportation dispatcher was informed of L.J.'s parents' complaint, and he radioed Ms. Jones and Ms. Snyder instructing them, upon completing the evening bus run, to report directly to his office and to give written reports of the L.J. incident. In her written report given immediately following the incident, Ms. Jones acknowledged that there was an exchange of profanity between her and the students involved, but she denied hitting L.J. or telling other students to pinch L.J.'s titties. The evidence of record reflects that Ms. Snyder did not dispute Ms. Jones' version of the incident. Ms. Snyder also executed a written incident report immediately following the incident containing her version of what occurred. According to the School Board, Ms. Snyder's initial written incident report was inexplicably lost. At the hearing, the School Board introduced an unsigned document (the School Board's Exhibit P-9) that was not sworn to by Ms. Snyder, purporting it to be a second revised report written by Ms. Snyder. This document is found to be unreliable. Later on the evening of December 9, 2003, after giving her written report that was somehow lost, Ms. Snyder called her Union representative and gave a description of what took place on the bus on December 9, 2003. A meeting was arranged with the director of transportation, Jody Dumas (Dumas). At the meeting, Ms. Snyder gave a version of the December 9, 2003, bus incident that was contrary to her earlier confirmation of Ms. Jones' December 9, 2003, written incident report. Ms. Snyder's recall of the December 9, 2003, incident alleged that Ms. Jones slapped and verbally abused and humiliated L.J. She went on to include a claim that Ms. Jones intimidated her and the students by telling everyone on the bus that they were to say nothing happened on December 9, 2003. Mr. Dumas conducted his investigation of Ms. Snyder's allegations by interviewing M.N. and J.M. on December 12, 2003. During the initial interview, M.N. confirmed Ms. Jones' version of the incident. Under the pressure of Mr. Dumas' continuous questioning, coupled with the promise that he would not be required to ride Ms. Jones' bus anytime in the future, M.N. capitulated and confirmed the "tittie"-pinching version of the incident and agreed with Ms. Snyder's "say nothing happened on December 9, 2003," addition to her version of the incident. It is found that Ms. Jones did in fact instruct another student to pinch L.J.'s titties, and the student, for reasons of his own, complied with the request while L.J. sat there humiliated. The evidence of record in support of Ms. Snyder's allegation that Ms. Jones intimidated her and all the students on the bus by telling them "say nothing happened on December 9, 2003," is unreliable and rejected by the undersigned. On December 10, 2003, Mr. Dumas suspended Ms. Jones with pay pending further investigation of the December 9, 2003, incident. Mr. Dumas, after his review of Ms. Snyder's version of what occurred and his interviews with unnamed students, met with Ms. Jones and confronted her with the "slapping and verbal abuse of [L.J.]" allegations. Ms. Jones denied slapping and verbally abusing L.J., at which time Mr. Dumas advised Ms. Jones that he would recommend her termination to the School Board. It is found that the suspension of Ms. Jones by Mr. Dumas was appropriate and in accordance with the School Board's policy. On December 19, 2003, in his memorandum to Scott Lempe (Mr. Lempe), director of human resources, Mr. Dumas set forth specific factual bases in support of his recommended termination of Ms. Jones: (1) Ms. Jones slapped L.J. at least two times in the face; (2) Ms. Jones told another student on the bus, M.N., to go over to L.J. and pinch his titties; and (3) on at least one other occasion, Ms. Jones told one student to slap another student because he was putting a window down. Mr. Lempe prepared a notice of termination on January 5, 2004, containing his detailed explanation of the grounds for the termination based upon Ms. Jones' violations of Section 5.30(2)(c) of the Sarasota County School Board policies manual, regarding corporal punishment and the Policy Manual, Code of Professional Conduct of Non-Instructional Support Staff, and Sections 1012.22 and 1012.27, Florida Statutes (2003), insubordination and misconduct in office. On February 18, 2004, the School Board terminated the employment of Ms. Jones with its transportation department as a school bus driver. The School Board proved, by a preponderance of credible evidence, that Ms. Jones violated the School Board's policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District, as alleged in the notice of termination dated February 18, 2004.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating the contractual employment of Respondent, Nancy Jones. DONE AND ENTERED this 19th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia 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 19th day of August, 2004. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 2750 Ringling Boulevard, Suite 3 Sarasota, Florida 34237 Nancy Jones 1280 Highland Street Sarasota, Florida 34234 Gene Witt, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3304 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether the Petitioner, Warren Hayward, Sr., should be disciplined as an employee of the School Board?
Findings Of Fact The Petitioner, Warren Hayward, Sr., began employment as a school bus driver with the School Board sometime in either 1980 or 1981. At all times pertinent to this proceeding, Mr. Hayward was a bus driver for the School Board. At the time that Mr. Hayward began his employment as a bus driver with the School Board, he was given a copy of the School Bus Driver's Handbook by Mr. David Conrad Meyer, the Supervisor Director of Transportation of the School Board. Mr. Meyer was Mr. Hayward's immediate supervisor. Mr. Meyer also Supervised the other seven school bus drivers who worked for the School Board. Mr. Meyer was responsible for evaluating the eight school bus drivers and insuring their compliance with the law concerning the operation of school buses. Mr. Meyer had driven a school bus from 1972 until 1979 and has been Director of Transportation since 1979. On the morning of December 4, 1985, Mr. Hayward stopped at one of the regular stops on his route along Bay City Road in Apalachicola, Franklin County, Florida. There was a dirt turn around road off of Bay City Road which Mr. Hayward drove the bus around and up to the pavement of Bay City Road where he stopped the bus to pick up students. After stopping the bus that morning, Allen Dempsey, Lloyd Alford and William Thomas Jenkins, who were all friends, entered the bus with a few other students. Allen and Lloyd were in the ninth grade and Billy was in the seventh grade at the time of the incident. They all attended Apalachicola High School. The last three students to enter the bus were Allen, followed by Lloyd and then Billy. Students had been directed in the past that the first five seats of the bus were to be used only by elementary school students. On occasion, other students were required to sit in the first five seats as a disciplinary precaution. Other than those exceptions, the older students, including Allen, Lloyd and Billy had been instructed not to sit in the first five seats of the bus. Upon entering the bus on December 4, 1985, Allen, Lloyd and Billy proceeded to the middle to rear portion of the bus. Before Allen or Billy could get into a seat, Mr. Hayward began moving the bus. Mr. Hayward started the bus without warning and without insuring that all of the students were in their seats. When the bus first moved it jerked. When the bus began to move, Billy fell backwards into the seat and hit his head against the inside of the outer wall on the side of the bus. Lloyd, who had taken the seat across the aisle from Billy and had witnessed Billy fall, asked him if he was okay. Billy said that he was a little dizzy. As a result of the fall, Billy eventually had a knot on the back of his head. Billy did not suffer an permanent injuries, however. After Billy told Lloyd that he was little dizzy, Lloyd stood up and yelled toward Mr. Hayward that "you are suppose to wait until we are seated before taking off--you made Billy fall and hurt himself" or words to that effect. In response to Lloyd's comment, Mr. Hayward stopped the bus, got up out of his seat and stood in the aisle next to his seat. Mr. Hayward replied, in effect, that "you could have used one of the first five seats; I only have to wait until you are past the first five seats." Mr. Hayward then sat down and proceeded on his route. At no time on December 4, 1985, did Mr. Hayward inquire about Billy's fall or go back to where Billy was seated to check on him. Nor did Mr. Hayward report the incident to Mr. Meyer or any other person. At the time of the incident there were approximately fifteen students on the bus. None of the students, including Billy, reported the incident of December 4, 1985, to anyone at school that day. On the evening of December 4, 1985, Billy reported the incident to his Mother when he arrived home. After inspecting the knot which had appeared on Billy's head, Billy's parents, Lloyd and Billy went to the home of the principal of Apalachicola High School, Mr. Fox, and reported the incident. Mr. Fox sent the Jenkins family and Lloyd to see Ms. Gloria Tucker, the Franklin County Superintendent of Schools. Ms. Tucker met with them and observed the knot on the back of Billy's head. Ms. Tucker told Billy's parents that, if they wished to make a complaint, they would have to do so in writing the next morning. She also told them that she would contact Mr. Meyer and inform him that they wanted to make a complaint. After the Jenkins family and Lloyd departed, Ms. Tucker called Mr. Meyer and reported the incident to him. Mr. Meyer had not been told of the incident until this time. She directed Mr. Meyer to take the statements of the Jenkins family and the other students and to look into the matter. On the morning of December 5, 1985, Mr. Fox asked Allen, Lloyd, Billy and Matthew Cramer to write a statement describing the incident of the day before. Matthew Cramer was a student who was already on the bus on December 4, 1985, when Billy entered the bus. Matthew witnessed the incident of December 4, 1985. All of the students and Billy's parents filed statements. Because the statements were given on December 5, 1985 all of the students, except Billy, dated their reports as of that date. Billy dated his statement December 4, 1985, the date of the incident as opposed to the date he made the statement. At some point shortly after the incident, Billy was seen by a physician and his head was x-rayed. Mr. Meyer sent a letter dated December 9, 1985, to Mr. Hayward informing him that a complaint concerning the December 4, 1985, incident had been received and that it would be reported to the School Board at the regularly scheduled meeting on December 11, 1985. A copy of the written statements made by the students and Billy's parents was attached to the letter. Mr. Hayward, who received the letter and statements, was also told that he could respond if he wished. No response to this letter or the complaint was made by Mr. Hayward at that time. Billy's parents and other parents attended the School Board meeting on December 11, 1985. Because of concerns expressed by the parents for the safety of students riding Mr. Hayward's bus and concern for Mr. Hayward's safety, Ms. Tucker directed Mr. Meyer to ride with Mr. Hayward on his bus route. By letter dated December 12, 1985, Ms. Tucker informed Mr. Hayward that the Board had authorized her to commission an investigation concerning the incident of December 4, 1985, and other alleged incidents, and that J. Patrick Floyd, Esquire, Ms. Tucker's attorney, would conduct the investigation. Ms. Tucker also informed Mr. Hayward that the School Board had Suspended him with pay until the January, 1986, meeting of the School Board. Mr. Floyd conducted an investigation of the December 4, 1985, incident and other incidents, and submitted a written report to Ms. Tucker before the January 16, 1986, School Board meeting. At no time, however, did Mr. Floyd talk to Mr. Hayward. Ms. Tucker also discussed the report with Mr. Floyd. Based upon Mr. Floyd's report and based upon Ms. Tucker's understanding of other incidents involving Mr. Hayward's operation of his bus, Ms. Tucker recommended to the School Board that Mr. Hayward be terminated as an employee. Mr. Floyd's report was presented to the School Board at its January 16, 1986, meeting. A copy of the report was also provided to Mr. Hayward. By letter dated January 17, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Floyd's report and Ms. Tucker's recommendation had been presented to the School Board meeting of January 16, 1986, and that the School Board would consider the report and recommendation at its February 4, 1986, meeting. The letter indicated that Mr. Hayward could attend the meeting to discuss the report and to present witnesses and other evidence. By letter dated January 30, 1986, Mr. Hayward responded to the School Board through his counsel. In a memorandum dated February 3, 1986, Ms. Tucker informed the School Board that she could not attend the School Board meeting of February 4, 1986, and restated her recommendation that Mr. Hayward's employment be terminated. At its February 4, 1986, meeting, the School Board decided to terminate Mr. Hayward as an employee of the School Board. This decision was reached after allowing counsel for Mr. Hayward to respond to the allegations concerning Mr. Hayward's operation of his school bus. In a letter dated February 13, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Hayward had been terminated from employment by the School Board and informed them of Mr. Hayward's right to request an administrative hearing to contest the decision. In a letter dated February 28, 1986, Mr. Hayward requested an administrative hearing to contest his termination from employment by the School Board. Mr. Hayward had started his bus in motion before all students on the bus were seated on other occasions before the December 4, 1985, incident. Several other complaints concerning Mr. Hayward's operation of his bus had been received in writing by Mr. Meyer prior to the December 4, 1985, incident. Mr. Meyer only investigated reports if the complaining party made a written report of the incident. No written complaints concerning the operation of a bus have been received by Mr. Meyer concerning any other driver. Two written complaints have been received about another driver but those complaints did not concern the safe operation of a school bus. One complaint received by Mr. Meyer was from Ms. Donna Ward, a secretary at Chapman Elementary School. The complaint concerned an incident witnessed by Ms. Ward on May 26, 1981. Ms. Ward heard persistent horn blowing outside the school and went outside of the front of the school to investigate. It was raining and the circular drive used to pick up children by parents and the school bus drivers was full of waiting cars and buses. Mr. Hayward's bus was out on the street near the entrance of the driveway and Mr. Hayward was blowing the horn. The cars in front of him could not move, however. Nor was the area exclusively for use by the school buses. Mr. Hayward had been told to arrive early to avoid difficulty getting his bus to the pickup point within the driveway. He had also been told that the driveway at the school was available for use by parents and not just school buses. After blowing the horn for approximately four to five minutes, Mr. Hayward drove the bus to the exit of the driveway. Mr. Hayward then began to back the bus into the driveway in front of another bus parked at the curb. As he did so, students began exiting the building. Ms. Ward grabbed one student who ran behind Mr. Hayward's backing bus and pulled him back onto the sidewalk. No one was behind the bus giving Mr. Hayward directions as he backed the bus into a school grounds area congested with students and vehicles. Mr. Hayward's actions in backing the bus were not safe. At some point along Mr. Hayward's bus route along Bluff Road, the road crosses a railroad track. Mr. Hayward must cross the tracks once on his way out Bluff Road, turn around after picking up students and cross the tracks again on his way back. On one occasion, Mr. Hayward failed to stop at the crossing on his way out Bluff Road even though the warning lights were flashing. On his way back along Bluff Road, Mr. Hayward did stop the bus but failed to open the doors of the bus before crossing the tracks. On another occasion, Mr. Hayward slowed the bus at the railroad crossing but did not stop until he was already on or very near the tracks and observed a crane moving on the tracks. Mr. Hayward then slammed on the brakes and backed the bus up. The sudden stop of the bus caused an elementary student to hit and bloody her nose. The warning lights on Bluff Road which Mr. Hayward had to cross malfunctioned on a number of occasions. On one occasion, the light malfunctioned while Mr. Meyer was riding with Mr. Hayward. Mr. Hayward followed safe procedures on this occasion. Although the lights did malfunction on occasion, they also worked properly on other occasions. Mr. Hayward has received two driving citations and accumulated six points on his driving record. These citations were associated with his driving of his personal automobile and not a school bus. On May 4, 1983, Mr. Hayward was cited for faulty brakes and received two points. On this occasion, Mr. Hayward was unable to stop his car because his brakes failed. He drove into the wall of a store. Mr. Hayward had the brakes repaired approximately two weeks before this incident. On June 15, 1984, Mr. Hayward was cited for speeding and received four points. None of the other seven school bus drivers of the School Board have received driving citations during the past seven years. Except for a few students in Carrabelle, no black students ride the school bus in Franklin County. This is because, although black students make up approximately thirty-five percent of the student population, they all live within one mile of their schools and only students who live more than one mile from their schools are provided bus transportation. Therefore, the route driven by Mr. Hayward included stops for only white students. Mr. Hayward was the only black bus driver ever employed by the School Board. Mr. Hayward was the President of the N.A.A.C.P. for Franklin County during 1984, and had been active in community affairs. Among the activities Mr. Hayward was involved in were the adoption of single-member districts for the School Board. The School Board ultimately approved single-member districting for Franklin County. None of the members of the School Board who took part in the decision to terminate Mr. Hayward's employment with the School Board were elected to the School Board after single-member districting was adopted. When Mr. Hayward first applied for his position with the School Board, he was told by Mr. Meyer that there was no vacancy. Mr. Hayward contacted the Franklin County Superintendent of Schools, Ms. Tucker, about what Mr. Meyer told him. After Ms. Tucker spoke with Mr. Meyer, Mr. Meyer gave Mr. Hayward an application and ultimately was hired as a bus driver. On May 3, 1985, a meeting was held between Mr. Hayward, Ms. Tucker, Mr. Fox, Ms. Rose McCoy, the Principal of Chapman Elementary School and two others. Ms. Tucker scheduled the meeting because of problems voiced by Mr. Hayward concerning the treatment of discipline referrals by the Principals and complaints concerning Mr. Hayward's treatment of students and the two Principals. Mr. Hayward identified four students as discipline problems during this meeting. None of the students involved in the December 4, 1985, incident were named as problem students by Mr. Hayward. Mr. Fox agreed to administer corporal punishment to one of the students named by Mr. Hayward at the meeting and offered to allow Mr. Hayward to witness the punishment. Mr. Hayward declined. There is a relationship between a school bus driver's ability to manage students and the safe operation of a school bus. A driver must be able to manage students. The most important consideration for a school bus driver is the safety and health of the driver's student passengers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a Final Order terminating Mr. Hayward's employment as a school bus driver for the School Board. DONE and ENTERED this 18th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0970 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 1. The first sentence is a summary of testimony and not a proposed finding of fact. See 42 and 45. The last sentence is not relevant to this proceeding. The number of black drivers "currently" employed is not relevant to this proceeding. 3-4 3. 3, 33 and 41. The fourth sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Summary of testimony and not proposed findings of fact. See 4, 9, 16 and 19. The weight of the evidence proved that the injury took place on December 4, 1985. 14. The first sentence is not Supported by the weight of the evidence. 9 15-17 and 20. 10-11 Not supported by the weight of the evidence. 5. Matthew Cramer was not good friends with the other three individuals. Not Supported by the weight of the evidence. See 35-37. 14-17 Not relevant. Not supported by the weight of the evidence. 43. The evidence failed to prove that a consent decree was entered as a result of Mr. Hayward's effort. 44. The evidence failed to prove, however, that the fact contained in the first sentence had any effect on the action taken by the School Board against Mr. Hayward. The last sentence is not Supported by the weight of the evidence. Hereby accepted. The second sentence is a conclusion of law. 22-25 These proposed findings of fact are irrelevant or not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. See 34. The last sentence is not supported by the weight of the evidence. Summary of testimony and not a proposed finding of fact. The first paragraph is not supported by the weight of the evidence. The last paragraph is irrelevant. Hereby accepted. 29 18. Irrelevant. Conclusion of law. 32-33 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1, 4-5 and 13. The date of the incident was December 4, 1985 and not December 4 or 5, 1985. The last sentence is not supported by the weight of the evidence. 2 6. 3 5 and 7-8. 4 8 and 9. The evidence failed to prove that medical attention was required. 5 10 and 11. 6 12. 7 7. 8 32. 9 7. 10 15-17. 11 18 and 20. 12 22 and 23. 13 23 and 25. 14 35 and 36. 15 46. 16 33. Mr. Meyer received two complaints about one other driver and not complaints about two other drivers. 17 3, 47 and 48. 18 2. 33, 38 and 40. The last sentence is true but not relevant because the evidence failed to prove why Mr. Hayward was placed on disciplinary probation. The next to the last sentence is not supported by the weight of the evidence. 34. The first paragraph was not supported by the weight of the evidence. The evidence concerning this paragraph was hearsay. The fourth paragraph is irrelevant. 24 and 28. The last sentence is not relevant. 22 28 and 29. 23 Hereby accepted. COPIES FURNISHED: Van P. Russell, Esquire Watkins and Russell 41 Commerce Street Apalachicola, Florida 32320 Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Gloria Tucker, Superintendent Franklin County School Board 155 Avenue E Apalachicola, Florida 32320 Martin B. Schapp Administrator 319 West Madison Street Room 3 Tallahassee, Florida 32399
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
The Issue The issues are whether Respondent properly suspended Petitioner's Contract for Transportation of School Children and revoked his license to drive a school bus.
Findings Of Fact Respondent's method of providing transportation for its students is unique in the state of Florida because it contracts annually with independent contractors for each bus route. Pursuant to the contract, independent contractors furnish a bus or busses and are responsible for employing qualified drivers. In order to be qualified, drivers must hold a license issued by Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code. Respondent and Petitioner entered into an annual contract for Petitioner to transport school children in Bus #657 for the 1991-1992 school year. At all times material hereto, the parties continued to perform under the terms of the 1991-1992 contract because Respondent was still negotiating the bus contracts for the 1992-1993 school year. Petitioner had been an independent bus contractor for approximately nineteen (19) years. The contract provided no guarantee that Respondent would renew its contract with Petitioner from year to year. At all times material hereto, Petitioner's wife, Eloise J. Lester, was the independent bus contractor for Bus #28. At all times material hereto, Petitioner held a Florida Department of Education school bus license issued by Respondent to operate a school bus. He had been licensed to drive a school bus for Respondent for nineteen (19) years. During that time, he had driven a bus on the Plummer Road route approximately 1,800 times with no reported mishaps. His prior record as a bus driver and bus contractor was unblemished. Respondent uses the Florida School Bus Drivers Handbook, published by the Florida Department of Education, as the curriculum to initially train drivers and for annual in-service training. Respondent gives a copy of this handbook to every driver. On the morning of February 8, 1993, Petitioner was driving his wife's bus #28 with students on board. He approached the railroad crossing at 9520 Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern Railroad train #229 a "good ways" down the track. The railroad crossing signals, flashing lights and bells, were activated indicating that the train was approaching the crossing. The engineer blew the train's whistle. Despite these warnings, Petitioner drove the bus across the tracks in front of the approaching train. The bus cleared the tracks just seconds before the train entered the crossing. The engineer, Jimmy W. Carter, and the conductor, Everett Maine, witnessed the incident and immediately reported the "near miss" to the railroad yard by radio. Later they prepared written incident reports. Norfolk Southern Railroad reported the incident to Respondent. Mr. Carter has been a train engineer for twenty-five (25) years. Mr. Maine has been a train conductor for forty-three (43) years. They were not under the influence of drugs or alcohol at the time of the incident. They were not involved in any conspiracy to harm Petitioner. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the bus in her driveway with her grandchildren on the morning of February 8, 1993. She testified that she did not know where the train was when the bus crossed the tracks. She did not remember hearing any bells or whistles. Petitioner testified that he could see the light of the approaching train before he entered the crossing. He denied that the crossing lights were flashing or that the alarm bells were ringing at that time. However, Petitioner stated that under certain circumstances, even if the crossing signals were activated, he had discretion to cross the tracks, i.e. when there is no train in sight or a train is stopped on the track. The eyewitness testimony of the engineer and the conductor relative to the activated signals and the distance of the train from the crossing at the time Petitioner drove across the tracts is more persuasive than any testimony to the contrary. After completing an investigation, the Director of Transportation, as the designee of the Superintendent made a determination in writing to suspend Petitioner's bus contract and revoke his school bus driver's license effective February 19, 1993. The initial suspension of the contract and revocation of the license was not permanent because both actions were subject to review by Respondent. The Respondent has discretion to enter into a new bus contract with Petitioner and to reinstate Petitioner's school bus license provided he meets the requirements of Rule 6A-3.0141, Florida Administrative Code. In March of 1993, Respondent assigned the contract for Route #657 (School Bus #657) to Petitioner's wife at her request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order affirming the suspension of Petitioner's bus contract and revoking his school bus license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of May, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Accepted in paragraph 6 of this Recommended Order. Accepted in paragraphs 2-4 of this Recommended Order. Accept that the testimony of the witnesses is in conflict. However, the testimony of the engineer and conductor is more persuasive than the testimony of the neighbor, the Petitioner, or any other witness. Rejected. The suspension and revocation was subject to review by Respondent and will not become final until the Respondent issues a Final Order in this proceeding. Respondent has discretion to enter into a new contract with Petitioner and to reissue a school bus license. Rejected. Ms. Mardis did not see the bus as it crossed the tracks. The testimony of the engineer and the conductor is more persuasive. Rejected. The testimony of the engineer and the conductor is more persuasive. Rejected. The contract was suspended and the license revoked subject to review by Respondent. Even though the contract does not expressly provide for an appeal to Respondent under the facts and circumstances of this case, the right to review is implicit in the contract. Rejected. Regardless of what was said at staff meetings or in conference with Petitioner, the contract was not suspended and the license not revoked until Petitioner was notified in writing. Even then the adverse decisions were reviewable by Respondent. The contract does not specifically provide Petitioner an opportunity to explain why his contract should not be suspended and his license revoked at the time of the staff conference. The suspension and revocation was subject to review before the Respondent. Moreover, Respondent has provided Petitioner with a due process hearing by referring this matter to the Division of Administrative Hearings. Rejected. Ms. Lester was paid for transporting students in Bus 657 for the balance of the 1992-1993 school year beginning March of 1993. Since that time, Ms. Lester has been paid for transporting children in Bus 657. Respondent's Proposed Findings of Fact 1.--15. Accepted in paragraphs 1-12 of this Recommended Order. 16.--17. Accepted in paragraphs 1-2 of this Recommended Order. 18.--19. Accepted in paragraph in paragraph 11 of this Recommended Order. Accepted but unnecessary to resolution of case. Accepted but not at issue in this case. 22.--23. Accepted in paragraph 3. 24.--25. Accepted in paragraph 12 of this Recommended Order. COPIES FURNISHED: Michael Mullin, Esq. 26 S. 5th St. Fernandina Beach, FL 32034 Clay Meux, Esq. Vicki Reynolds, Esq. 600 City Hall 220 E. Bay St. Jackonsville, FL 32202 Dr. Larry Zenke Duval County School Board 1701 Prudential Dr. Jacksonville, FL 32207-8154 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue to be determined is whether Petitioner, the Palm Beach County School Board (the School Board or Petitioner), had just cause to terminate Respondent’s employment as a school bus attendant.
Findings Of Fact Petitioner, Palm Beach County School Board, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent has been a School Board employee since 2000. From 2000 to approximately 2007, she worked as a paraprofessional in the classroom, where her duties included assisting with exceptional education students. In 2007, she moved from the classroom to a position as a bus attendant, again working with exceptional education students as they were transported to and from school. Because of the population she served, her job included making sure that students were secured in their seats, including those who are transported in wheelchairs. As a bus attendant, Respondent was required to attend training each year at the beginning of the school year. The training included the transport of students with disabilities and the management of student conduct. Respondent was also subject to the guidelines contained in the School District of Palm Beach County Bus Drivers and Bus Attendant Handbook (Transportation Handbook), which reflects policies of the Transportation Department of the School Board and has not changed since 2011. She received a copy of the Transportation Handbook and was trained on the rules and procedures it contains. In chapter 2, section 8 of the Transportation Handbook, it states, “[t]he Bus Driver or Bus Attendant do not have the authority to strike or hit a student or to retaliate if struck or hit, but does have the right to reasonably prevent harm to him/herself.” Chapter 6, section 20 includes the following directions: When you are interacting with special needs students it is important to find out if the student understands that her/his actions are inappropriate or unsafe. It may be that the behavior is related to the particular disability and is not willful or intended behavior. If the disability is at the root of the student’s behavior, discipline may not be appropriate. * * * The bus attendant, as well as the Bus Driver, should learn the names of all students on the bus. Greet them kindly each day. Inquire about how they are feeling, how that did in school that day, etc. Let them know you care about them as people. This helps to set a pleasant and positive tone for the bus trip. Respondent also received training on the School Board’s Code of Ethics Policy, as well as receiving a copy of the policy itself. On April 27, 2010, Respondent electronically signed the Code of Ethics Acknowledgement Receipt indicating that she had received the training and read, understood, and agreed to comply with School Board Policy 3.02, the Code of Ethics. Policy 3.02 specifically defines unethical conduct as including committing any act of child abuse, including physical or verbal abuse; committing any act of cruelty to children or any act of child endangerment; and engaging in misconduct that affects the health, safety, and welfare of a student. Respondent worked on the Royal Palm School route. Royal Palm School is a school that is restricted to special needs students with significant cognitive and physical impairments. All bus routes for Royal Palm School require the use of bus attendants to assist with the students. Respondent chose the Royal Palm School bus route in order to work with Vernessa Edwards, a bus driver with whom Respondent worked for over two and a half years. She was working with Ms. Edwards the day of the incident giving rise to these proceedings. M.S.H. is a special needs student on the Royal Palm School bus route. M.S.H. is approximately 18 years old and suffers from an autism spectrum disorder. He is a large, muscular young man and is non-verbal. At the time of the incident giving rise to this case, M.S.H. was a fairly new student on Respondent’s bus. However, in the short time that he had ridden the bus, he had exhibited some disruptive behavior and both Respondent and Ms. Edwards were somewhat afraid of him. His prior behavior had led Ms. Edwards and Ms. Alexander to request that he ride the bus with a harness in order to restrict his movement. Their request had been added to his IEP (Individual Education Plan), but the harness provided was too small for M.S.H. As a result, while his movement was restricted, it was not as restricted as it would have been if the harness had fit him properly. M.S.H.’s shoes also were removed while he was on the bus in order to prevent him from throwing them to get attention. On October 29, 2015, M.S.H. was a student on the Royal Palm School route in the afternoon. Ms. Edwards had instructed Respondent not to seat any student in front of M.S.H. because of his aggressive behavior. Despite this instruction, Respondent placed a younger female student on the bench directly in front of M.S.H. Bus attendants are instructed to sit at the back of the bus, so that the adults on the bus are in different locations. This policy is implemented so that, in the event that there is an accident, at least one adult would be likely to be available to assist the students. Respondent did not follow this policy, but instead sat near the front of the bus, next to the younger student on the bench in front of M.S.H. At the beginning of the bus route, M.S.H. was fairly quiet. He was carrying a baggie filled with cereal, and seemed content. However, several minutes into the bus route, M.S.H. started rocking back and forth in his seat, and then began banging on the bus window. M.S.H. started flailing his arms around, and tried to reach toward Respondent to hit her with his baggie of cereal. Ms. Edwards called the dispatch officer to report the behavior. At first Respondent ignored him, and stood up to let other students off the bus. When she sat down, she continued to ignore him until he hit her with the cereal baggie. Respondent then snatched the baggie out of his hand, looked at him and after a moment returned the baggie to him. M.S.H. then sat in his seat, relatively quiet, for the next two minutes: however, while Respondent and Ms. Edwards assisted a wheelchair-bound student to exit the bus, M.S.H. resumed hitting the window. Soon after the bus resumed forward motion, M.S.H. once again hit the window, and then started reaching for Respondent with both hands. Respondent made no attempt to soothe him. Instead, she stood up and said to him, in an angry voice, “keep your hands to yourself!” M.S.H. responded by hitting her with the baggie of cereal and by reaching forward over the back of Respondent’s seat toward the young girl sitting next to Respondent. Once again, there was no attempt by Respondent to calm M.S.H. To the contrary, Respondent responded by punching M.S.H., three to four times and yelling at him. While Respondent does not dispute hitting M.S.H., she does not take responsibility for her actions and does her best to minimize them. She claims that hitting the student was not intentional and that it was “just a tap.” The undersigned has viewed the videos of the bus trip several times. It was no tap, and the action taken was definitely deliberate. Respondent hit M.S.H. so forcefully that the sound of the impact could be heard clearly on the bus surveillance tapes, as taken from the front, back, and middle of the bus. Respondent claimed that she was defending the little girl sitting in front of M.S.H. because he had hit her, and the child had cried out. While M.S.H. did reach over the seat toward the younger student, he did not make contact with her because of his harness, and she did not cry out. Respondent also stated that she had never before hit a child on the bus. Respondent has a short memory. The District also presented the bus video from October 21, 2015, slightly more than a week earlier. On that day, Respondent was strapping the wheelchair of another disabled student into place. While she was securing the wheelchair, she was standing to the side of the child’s wheelchair, leaning over him with her arms on either side of him. In short, while perhaps necessary, Respondent was definitely invading the child’s personal space. The child pushed against Respondent’s hand, and Respondent slapped him, telling him not to touch her. There was nothing soothing in the way she reacted to this child, just as there was nothing soothing in the way she reacted to M.S.H. When Respondent denied at hearing that she had ever slapped a child before hitting M.S.H., she was asked about the encounter with the wheelchair-bound child from the week before. The following exchange took place: Q. So, Ms. Alexander, you admit that you hit student M.S.H.? A. Yes. Q. And you hit him more than once? A. Yes. Q. And although you claim it’s not intentional; that it was a reflex, you actually hit him four times? A. I didn’t know how many time I hit him. Like his, to myself I counted four time. I don’t know how many time I did it. It was a quick reaction. I don’t know how many time I did. But I do admit it, that I hit him. Q. But you saw the video? A. I saw it. I was shocked. Q. And you had the opportunity to view the entire video? A. With you, yes. Q. And based on what you saw, it wasn’t a reflex, was it? A. Yes. Lord as my witness, yes. Q. So your reflex was to hit him. But you saw the video. It was more – it was more – A. I know it. When it happened I didn’t know until I saw the video because I did it so fast. Q. You just testified that you were shocked? A. I was shocked. Lord as my witness, I was shocked. Q. You were shocked by your own behavior? A. My own behavior, yes. Q. You testified earlier that you’ve never slapped a student before? A. Never slapped a student before, yes. Q. But in my office you also saw the video that’s been introduced into evidence as Exhibit 20-B where you said the other student in the wheelchair, M, and the video shows you slap his hand and you said don’t touch me? A. I didn’t hear that, but if you said it, it happen. Q. But you saw the video, and you slapped his hand? A. I’m always hitting him like that. I’m with him like that, and he like to kick his feet like that. So it’s your normal course to slap the students like that? A. No, no. I play with him, tease with him. I don’t know-–it just a way I interact with him. There was nothing playful about the way Respondent slapped this child’s hand. Moreover, Ms. Edwards’ reaction when Respondent hit M.S.H. does not reflect the surprise or shock that one would expect if Respondent had in fact never previously slapped a child. Instead, Ms. Edwards’ expression could be described as resigned dismay, more indicative of someone who had, sadly, seen this behavior before, and was hoping not to see it again. Ms. Edwards reported the incident with M.S.H. to her superiors. As a result, Respondent was reassigned from her position as a bus attendant and had no further contact with students. It does not matter whether Respondent’s behavior toward M.S.H. was the first time or the fortieth time she had acted this way. A single case of slapping a child in the manner that Respondent slapped M.S.H. is just cause for termination. While the School Board’s collective bargaining agreement provides for progressive discipline, there is authority for termination where the conduct for which discipline is sought is sufficiently egregious. Respondent had no prior formal discipline, although she had on two occasions received formal counseling and directives regarding aggressive behavior toward co- workers that would violate the School Board’s Code of Ethics Policy. Dr. Elvis Epps, the School Board’s human resources manager, testified that based on the investigation into Respondent’s behavior toward M.S.H., the superintendent recommended that she be terminated because her actions represented a real and immediate danger to the students in the school district and a flagrant and purposeful violation of the reasonable rules of the School Board. Dr. Robert Avossa was hired as superintendent of schools for the school district in June 2015. Since his employment as superintendent, the School Board has consistently terminated employees who have hit a student. It is common knowledge for employees of the School Board that hitting a student is grounds for termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order determining that just cause exists for a 15-day suspension without pay and termination of employment. DONE AND ENTERED this 16th day of December, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of December, 2016.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Mr. Denson first became employed with the School District in May 1992 as a helping teacher at a behavioral school. He was transferred to attending the disciplinary room and remained in that position until 1996, when he resigned to take a position at a juvenile prison. The new job fell through, and he became reemployed with the School District in 1997. He remained employed with the School District until May 30, 2005, when he resigned to work in the private sector as an air- conditioner technician. In April 2006, Mr. Denson became employed with the School District as a bus driver. Pursuant to the Support Personnel Association of Lee County Collective Bargaining Agreement (SPALC Agreement), Mr. Denson is an annual contract employee. On or about July 31, 2006, at approximately 1:28 p.m., Mr. Denson was driving school bus number 533 south on Southeast 8th Place in Cape Coral, Florida. He was doing a dry run or practice run of the school bus route for which he had bid to make sure that he could make the trip in the time allotted. There were no students in the bus. Neither the horn nor the radio on the bus was functional. A maintenance crew was working at a residence located at 3138 Southeast 8th Place in Cape Coral. A black Ford F150 truck with a trailer belonging to the lawn maintenance company was parked on the side of the road, blocking the road. As a result, Mr. Denson could not pass the truck with the school bus he was driving. Erick Baker, one of the lawn maintenance workers, was at the trailer putting up some equipment and putting on a backpack, wand-type weed sprayer containing Ortho Weed-B-Gone, a chemical weed killer. The wand of the sprayer is about two feet long and is activated by pressing a trigger. Mr. Denson signaled with his hands for someone to move the truck. Mr. Baker signaled to Mr. Denson, suggesting that he was not the driver and to wait a moment. Mr. Baker began to walk toward the house while spraying weeds. Mr. Denson opened the bus door and yelled that he needed to have the truck moved so he could proceed with his route. Mr. Baker continued to spray the weeds. Mr. Baker may have not heard Mr. Denson because one worker was operating a leaf blower and another was operating a riding lawn mower. Mr. Denson then exited the bus and approached Mr. Baker, who had his back to Mr. Denson. Mr. Baker, with the sprayer wand in his hand, turned toward Mr. Denson. The wand was pointed in the direction of Mr. Denson's face, approximately six to 12 inches away from Mr. Denson's eyes and mouth. Mr. Denson felt threatened, knocked the sprayer away, and struck Mr. Baker in the head. Mr. Baker never sprayed Mr. Denson with the chemicals in the sprayer. Mr. Denson claims that he struck Mr. Baker in self- defense, stating that when Mr. Baker turned around, Mr. Denson told him he needed to get the sprayer out of his face and that Mr. Baker replied that he would "spray Mr. Denson's ass." Mr. Baker denies saying that he would spray Mr. Denson. Mr. Baker's testimony is more credible. The two men fell to the ground with Mr. Denson on top of Mr. Baker. Mr. Denson hit Mr. Baker in the forehead again. Mr. Baker never struck Mr. Denson. Another worker with the maintenance crew grabbed Mr. Denson and pulled him off Mr. Baker. Mr. Denson returned to his bus and used his cell telephone to contact the Transportation West Zone Office of the School District to report the incident. Mr. Baker called the police to report the incident. After the altercation, Mr. Baker told Mr. Denson that he should have sprayed Mr. Denson. Officer B. W. Kearney of the Cape Coral Police Department was dispatched to the scene. Officer Kearney completed an Incident/Investigation Report, indicating that he was dispatched to a battery. In the report, Officer Kearney stated that Mr. Denson admitted punching Mr. Baker; however, Mr. Denson felt he acted in self-defense. Officer Kearney noted that Mr. Baker had no visible injuries and declined medical attention. Mr. Baker did not press charges, and Mr. Denson was not arrested. In response to Mr. Denson's call, Dale Maybin, assistant supervisor of the Transportation West Office, reported to the scene of the incident where he spoke with Officer Kearney. Mr. Maybin later submitted an Investigation Request form along with a written statement to the Department of Professional Standards and Equity. Mr. Denson was informed via certified letter dated August 7, 2006, from the superintendent that he was being suspended with pay pending the outcome of the School District's investigation into the matter. In accordance with Section 7.09 of the SPALC Agreement, a predetermination conference was scheduled with Mr. Denson for October 26, 2006, to review the allegations and to give Mr. Denson an opportunity to respond. Mr. Denson was advised of the conference via certified letter dated October 11, 2006, from Dr. Gregory K. Adkins, executive director of Human Resources and Employee Relations. The letter included a copy of the School District's investigative file. The predetermination conference took place as scheduled and was attended by Mr. Denson and Suzan Rudd, Island Coast FEA Service Unit director. Mr. Denson and Ms. Rudd were given an opportunity to address the allegations. Subsequent to the predetermination conference, a determination was made that probable cause existed to discipline Mr. Denson for his conduct. A certified letter dated October 30, 2006, was sent to Mr. Denson, advising him of the probable cause determination. The letter also advised that a recommendation would be made to the superintendent that Mr. Denson be terminated from his employment with the School District. By letter dated November 8, 2006, Robert J. Coleman, Esquire, advised the School Board's attorney that he had been retained to represent Mr. Denson. A Petition for Termination of Employment (Petition) was prepared, and a copy was forwarded to Mr. Denson's attorney on November 9, 2006. The Petition advised that the matter of Mr. Denson's termination was scheduled to be heard by the School Board on December 5, 2006. On November 13, 2006, Mr. Denson's attorney forwarded a letter to the School Board's attorney requesting a formal administrative hearing regarding the matter of Mr. Denson's termination. On December 5, 2006, the Petition was heard by the School Board. At that time, Mr. Denson was suspended without pay pending the outcome of a hearing to be conducted by the Division of Administrative Hearings. The School Board has a "zero" tolerance policy for threats of violence made by staff of the School District as set forth in Policy 2.71. The School Board has also adopted Policy 4.10, requiring employees of the School District to be in compliance with state and federal laws and with certain ethical standards. School District Administrative Regulation 2.61(1) provides: All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards as described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by State Board of Education Rule, and all local State and federal laws.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that just cause exists for termination of the employment of Mr. Denson and dismissing Mr. Denson from his employment as a school bus operator with the School District. DONE AND ENTERED this 18th day of April, 2007, 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 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 April, 2007.
The Issue The ultimate issue is whether Rule 6A-3.0141(1)(a) Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact History of Rule 6A-0141 Prior to the promulgation of Rule 6A-3.0141, effective August 1, 1986, the Department did not have an established mandatory retirement age for public school bus drivers. It is not known how many drivers remained employed after reaching age 70. The mandatory retirement age of 70 originated from the concern expressed by transportation personnel in several local school districts about the great variance in the quality of physical examinations given to screen drivers for safety. The old rule allowed school districts to designate any licensed physician to administer the physical, and, in many cases, drivers were going to family physicians who were hesitant to fail them. The mandatory retirement age of 70 was adopted to address this concern, however, the old rule provision allowing local school districts to designate any licensed physician to conduct physical exams went unchanged. Larry McEntire, Administrator of the Department's School Transportation Management Section, worked to formulate the new rule with the five or six members of the standing rules committee of the Florida Association for Pupil Transportation (FAPT), which is comprised of personnel from the local school districts. The rule change instituted comprehensive classroom and on-the-road driver training requirements. The anew age restriction was not controversial; in fact the official published justification for the rule mentioned only the new training requirements, not the new mandatory retirement age. The particular age of 70 was arrived at through information provided by other states, ten of which had a mandatory retirement age of 70, consistent with the age-70 limitation on coverage under the federal ADEA at the time. No Florida school bus accident data, which was then viewed as unreliable, was used in choosing 70 as the age for mandatory retirement. No Florida statute suggested that age in general, or age 70 in particular, be used as a criterion in establishing qualifications for Florida school bus drivers. With regard to training and increased frequency of physical examinations at age 65 and over, the rule is patterned after the safety standards of the National Highway Traffic Safety Administration (NHTSA). However, the mandatory retirement age of 70 is in direct conflict with the NHTSA standards in effect then and now, which recommend no mandatory retirement age. The Department received a survey of state directors of pupil transportation on September 3, 1985, which was issued August 29, 1985, by the National School Transportation Association, indicating that at least 30 states had no age limit at that time for employment as a school bus driver. Although Mr. McEntire had previously seen the 1969 study by Promisel in his master's program in transportation and safety at Florida State University, neither that study nor any other study or data analysis was presented to or considered by the FAPT rules committee or others in the Department. Mr. McEntire is not aware of any study, data, or analysis considered during rulemaking which contained a recommendation that age 70 be adopted as a mandatory retirement age for school bus drivers. Mr. McEntire is unaware of whether the School Health Advisory Committee of the Florida Medical Association (FMA), which has a longstanding relationship with the Department, has ever recommended adoption of a mandatory retirement age of 70 as a means of ensuring that school bus drivers have the necessary qualifications to drive safely. Mr. McEntire and the FAPT rules committee did see a two-page document from Iowa entitled "In re Sievert Van Dyke" which reported, among other things, that "school bus drivers under 30 years and over 65 have a disproportionately large number of accidents," that "30, 40, 50 percent of the variability can be predicted on the basis of age," and that "sudden incapacity due to medical defects becomes significantly more frequent in any group reaching age 60." In Rule 6A-3.0141 several statutes are cited as specific authority for the rule and certain other statutes are cited as the specific laws implemented. None of the provisions of law mentioned in the rule requires a mandatory 70 year retirement age for public school bus drivers. The Student Transportation Coordinator for the Florida Highway Patrol, which has regulatory jurisdiction over approximately 4,000 private school bus drivers in Florida, was aware when the Department of Education instituted a mandatory retirement age of 70. The jurisdiction and mission of the Florida Highway Patrol in this regard directly parallels the mission of the Department of Education concerning public school bus drivers. While the Florida Highway Patrol requires drivers age 65 and over to have a physical examination semiannually rather than annually, as does the Department of Education, there is no age limitation for driver certification, there has never been one, and no change is planned in this policy. Age and Accident Risk Patricia J. Waller, Ph.D., is the Associate Director for Driver Studies at the University of North Carolina, Highway Safety Research Center, Director of the University of North Carolina Injury Prevention Research Center, and research professor at the University of North Carolina Center for Policy and Health. She is an expert in the area of driver licensing and crash safety. Dr. Patricia Waller has studied the relationship between age and accident rate. The results of Dr. Waller's research as it relates to age and crash risk are that when number of miles driven is considered, there is an increase in crash risk. Dr. Patricia Waller was commissioned by the National Academy of Sciences to write a paper, "Renewal Licensure of the Elderly Driver," to be included in a comprehensive study that was done on transportation in an aging society. The publication in which Dr. Waller's paper appears officially came out in October 11, 1988. Dr. Patricia Waller's paper, "Renewal Licensure of the Elderly Driver", was done after a review of all the literature that was available on the topic of licensure and re-licensure of older drivers. The literature available included studies related to age and accident rate. Studies have shown that drivers over 65 years of age as a group behave very responsibly in driving situations. Older drivers tend to restrict their own driving to the best time and locations. For example, because of marked vision changes that occur with increasing age, older drivers reduce their nighttime driving; also, older drivers also tend to reduce their driving in cases of inclement weather or during heavy traffic times. Despite the fact that older drivers restrict their own driving so that it is less demanding, there is still an increase in crash risk with increasing age. The crash rate increases for people in their middle to late fifties, particularly when the number of miles driven in considered. However, the crash risk increases even more for individuals in their early to late sixties. With respect to drivers in their sixties and seventies, age is associated with an increasingly accelerated risk of crash. There is also an increase in crash risk per mile with increasing age. It is Dr. P. Waller's opinion that the Department should set a mandatory retirement age for school bus drivers because the crash data on licensed drivers indicates increasing involvement after age 65. It is also Dr. P. Waller's opinion that it is in everybody's best interest that older people as a group be allowed to meet personal transportation needs by retaining their driver's license for as long as possible. She feels there are tradeoffs that allow us to say we are willing to accept the highway safety risk in order to enable this person to continue to function independently. Dr. P. Waller does not believe that the state of the art permits adequate testing to determine the ability to safely drive; however, she is not a medical doctor fully versed in medical testing. For her proposition that older school bus drivers should have the same crash risk as older drivers generally, Dr. P. Waller relied on the Promisel data. The Promisel data, set forth in a 1969 report from Dunlap and Associates on school bus safety and operator age in relation to school bus accidents, shows that the number of crashes increases very dramatically with age, particularly when the number of miles driven is considered. The Promisel study found no correlation between age and accident severity, recommended against the establishment of school bus driver age limits, specifically disclaimed any causal relationship between age and accidents, and made no analysis of accident risk associated with age 65 or over. The skewed age population in the Promisel study and the "generational cohort effect" (simply stated, the older a study of drivers, the less validity it may have for current drivers) render any accident risk projections from that study to today's 70-and-over Florida school bus drivers unreliable. Finally, it is Dr. P. Waller's opinion that age 70 is an arbitrary number and that any set age is arbitrary, however, she is aware of no alterative to using age as the cutoff standard in order to maximize safety. Dr. Julian Waller is a medical doctor and also has a Master of Public Health Degree in Epidemiology. For the past 20 years, he has been employed at the University of Vermont College of Medicine. Since 1978, Dr. J. Waller has been a professor of medicine in the geriatric unit. Dr. J. Waller is an expert in the areas of human physiology as it relates to driving and medical impairment to driving; also, Dr. J. Waller is an expert in the area of statistics. Dr. J. Waller has not examined a patient since 1961. He is not certified in the sub- specialty of geriatric medicine and he is not familiar with the term heteroschistosity. He has not personally studied bus drivers. According to Dr. J. Waller, there are four basic driving tasks, all of which involve some type of commercial driving, that put excessive stress on drivers. The specific categories are: driving a bus, driving a large truck, driving an ambulance, and driving a police or fire vehicle. In order to drive a vehicle of any type, four types of capabilities are needed: (1) the person must be alert; (2) the person must be able to identify things in the environment that potentially represent a threat; (3) the person must be able to make timely and appropriate decisions; and (4) the person must be capable of carrying out the decision in a timely and appropriate manner. Normal changes occur as an individual ages that may affect his ability to perform the tasks required in a driving situation. Vision normally deteriorates with increasing age. There may be a narrowing of visual fields, a decrease in ability to adapt to dark situations, and problems associated with glare. An area of concern that may affect older individuals is contrast sensitivity. An individual with problems in this area may have absolutely normal static visual acuity. That is, he can read a typical Snellan chart very easily, but cannot read signs or other things in the environmental which are not perfect contrast of black and white. A person affected by contrast sensitivity may not be aware of many things in their environment, such as traffic signs and street signs unless they are black and white. Complex reaction time is an important factor to consider for a person in a driving situation who is required to make decisions. Older people often do not do well in complex situations where reaction time is critical. A problem among older individuals is the beginning of alteration of consciousness for very brief periods of which they are not totally aware. A physical examination or a mental examination evaluates the performance of the individual at that particular time only. An individual's performance may vary from day to day or moment to moment. During the early stages, Alzheimer's disease may be difficult to identify. However, it is during this time that individuals are most likely to be driving. The symptoms which the disease manifests, though not apparent during a physical examination, may affect an individual's driving. Everyone has a variability in their performance. However, because an older person's spare capacity has been eroded, they have less spare capacity to respond to the demands of driving situations. As a result, what may be even a relatively normal variation may put the older person below the minimum that is required to deal with increased demand required to meet emergencies and more demanding driving situations. Further, according to Dr. J. Waller, the physiological changes that affect a person's vision, stamina, and ability to deal with time-bound decision making and response time so as to effect crash rate begins at about age 55. By age 65, the increased crash risk of all drivers is significant enough to cause concern about people this age performing a special driving task such as driving a school bus. Dr. J. Waller believes that health-related criteria used in a physical examination lack the precise, predictable cutoff points to distinguish between those older drivers who should be permitted to drive and those who should not be permitted to drive. In areas where special licensing procedures are used to license older drivers, there is still the same increased crash risk for older drivers. It is Dr. J. Waller's opinion that as people grow older they have more crashes per unit of miles driven and turn out to be responsible for those crashes more frequently. It is Dr. J. Waller's opinion that it is reasonable for the Department to set an age limit for school bus drivers and that such an age should not be much past the age of about 65. He bases this opinion on his experience in working with departments of motor vehicles through the years. It is also Dr. J. Waller's opinion that the problem of physical impairment and driving and crash risk is too inexact to permit appropriate identifying criteria for those drivers who should not be permitted to drive. Dr. J. Waller served on a committee of the American Medical Association that attempted to put together an appropriate set of identifying criteria and the doctors were unable to agree. According to Dr. Waller, this lack of agreement reflects basically a lack of progress in the predictive capabilities of physical examination that has existed since 1927. Dr. J. Waller feels that the Folstein mini-mental examination cannot identify early Alzheimer's disease. It is Dr. J. Waller's further opinion that physical examinations do not reveal subtle degradation and reduced capacity in individuals. Dr. J. Waller believes that subtle degradation changes cannot be measured, but have individual components which may be testable under certain circumstances. However, the way they all relate to each other has never been tested. It is his opinion that the way we know that they exist, since they cannot be tested, is because we see what is the end result. Dr. J. Waller presented a bar graph, marked as Respondent's Exhibit K, which he relied on for his opinion that the relationship between age and accident risk is approaching an exponential relationship. That graph and the opinion based on it are unreliable. The graph is not statistically accurate, is visually deceptive as drawn, and is an unsubstantiated data analysis. Marc G. Gertz, Ph.D., is a professor at Florida State University and president of Research Network, an independent data analysis, survey, research methodology and political polling firm. As part of his duties at F.S.U., Dr. Gertz teaches many of the graduate courses in research methodology and statistics as well as having been chairman of and serving on the Ph.D. Methods Comprehensive Examination Committee for the previous eleven years. Dr. Gertz was employed by FEA/United to conduct an analysis of school bus drivers and accident rates in the State of Florida. In collecting data for this project, Dr. Gertz was not able to find any previous study ever done in Florida on school bus drivers and accident rates. This project entailed the collection of three sets of data. One set of data was obtained from the Department of Highway Safety and Motor Vehicles (DMV). The second set of data was obtained from the Department of Education (DOE) and the third set of data was a complete enumeration (as opposed to a random sample) obtained from individual counties, specifically Dade, Pinellas, Okaloosa and Hendry. Dr. Gertz performed a number of statistical analyses on the data collected and compiled it into a report. Dr. Gertz pointed out that this is an original collection of data as opposed to a summary of data from the agencies in question that have control of the data. This data is known as primary data which is data you collect yourself as opposed to secondary data, which is someone else's data used to do your analysis. The problem with secondary data, according to Dr. Gertz, is you don't know what went into their choice of variables, their choice of case, how they operationalized, how they defined the terms or how they manipulated the data. An example of one piece of primary or "raw" data that was collected by Dr. Gertz for this study is the individual accident reports on file with the DMV. The DMV data was compared for years 1984 and 1985 for each of the different variables, for example, the number of injuries or the number of fatalities was compared with age to obtain both simple correlations and age as a curvilinear function. Based on his research, Dr. Gertz found from the DMV data that age had no statistically significant correlation with accidents of school bus drivers in Florida. Dr. Gertz explained the negative numbers of page 1 of his report as negative correlations which indicate that younger drivers are more likely to have accidents, although he was not comfortable saying that the correlation was statistically significant. Dr. Gertz pointed out that in his examination of the DMV data, what is called an accident may not be what all of us would call an accident. For example, if you knock over a tree limb or if the bus mirror is damaged, this could result in an accident report being filed with the DMV. In the bottom half of page 1 of his report, age was squared to give more weight to the younger and older people to see if age was a curvilinear function of these variables, but this analysis did not change the statistical results. Dr. Gertz performed more sophisticated analyses on the data sets he collected such as regression analysis and discrimination function analysis, but could still not explain the variation in accidents with any of the variables tested to correlate age with any of those variables. The second set of data was obtained from the DOE for the years 1986 and 1987. The results of Dr. Gertz's analyses are found on page 2 of his report. This data revealed three significant relationships, although in Dr. Gertz's opinion the significance was at a very, very low level. The statistical significance found by Dr. Gertz is .05 which means that 95 times out of 100 times it would not be happening at random. These three significant relationship are (a) in 1986 younger drivers were more likely to have had prior accidents; (b) in 1987 the younger drivers were most statistically likely to have been charged in the accident; and (c) in 1986 bus drivers who did have in-service training were less likely to have had accidents. For (c) the statistical significance is .01. On page 3 of his report, age was cited as a percentage for the years 1984-1987 using both the DMV data and the DOE data. Dr. Gertz explained this data in terms of the "n" sizes. The "n" size means the sample size. The rule of thumb, according to Dr. Gertz, is that you don't analyze columns that have less than 25 cases in the sample. In the data provided, however, some sample sizes were smaller than 25 which skews the percentage. The closest comparison in this data is in the 1984 Department of Motor Vehicle Data in which a sample size of 18-24 year olds contained 24 cases. The analysis revealed that for all accidents, the percentage where the driver was not charged is 72 percent for 18- 24 year olds and 87 percent in the 65 and older group. Petitioner's Exhibit 1, pages 4 and 5 (Gertz's report) contains the data from the third data set. This data was collected directly from the counties and contains a complete enumeration and includes all school bus drivers, those who did not have accidents as well as those who did have accidents. Based on all the data and his analyses, it was Dr. Gertz's opinion that age did not explain why accidents occurred among school bus drivers in the State of Florida. There is no statistically significant correlation between increased age of public school bus drivers and increased accident risk. In fact, the only slight correlation is between younger drivers and increased accident risk. His conclusion is that, based on the current Florida data, age is no factor in accident risk for public school bus drivers. His opinions are accepted as most creditable because they are based on current Florida data regarding school bus drivers. Individual Medical Testing Dr. Sue H. Schler is a medical doctor and holds a Master's degree in public health and biostatistics and epidemiology. Dr. Schler is an expert in the field of geriatric medicine. Dr. Schler passed the first subspeciality certification examination in geriatric medicine ever offered, making geriatric medicine officially a subspeciality of internal medicine as of 1988. Dr. Schler teaches medical students at the University of South Florida College of Medicine. Dr. Schler believes that the average physician in Florida could easily be trained to conduct a physical examination (including a neurological exam) on a school bus driver that would take about half an hour to perform which would screen out the safe from the unsafe driver of any age. Dr. Schler explained the principle of heteroschistosity. The principle of heteroschistosity means that there is an increasing variability between individuals of increasing age as for as their physical health and their functional capacity. In light of this principle, medical examinations are increasingly likely to detect medical impairments of both a pathological and a normative nature as individuals increase in age. In Dr. Schler's opinion, functional assessment is the most appropriate method of testing individuals to determine physical and mental capabilities. Functional assessment is one of the big trends in geriatric medicine and in the past few years has been proven to have predictive value for morbidity and mortality. Dr. Schler examined ESE Form No. 479, which is the application for a license to drive a school bus, and found it to be grossly inadequate to safely screen a driver of any age. Florida's physical examination for school bus drivers could be substantially improved by assuring the quality and competence of the physician and his familiarity with the particular procedures used, and by adding more "hands-on" procedures. The current examination form requires only that "vital signs" be taken and a basic "20/20" vision test be performed, and then asks the physician to answer 12 questions "yes" or "no" with a "brief explanation" for any "no" answer. The physician's certification was recently amended to include the limiting language "on that date" regarding the school bus driver's condition. Dr. Schler believes Florida's screening procedure could be made adequate for school bus drivers if certain additional tests and procedures were added to the current form. Dr. Schler specifically mentioned a better medical history, a better physical examination, including a complete neurological exam, and a mental status examination such as the Folstein Mini Mental Status Test, and additional testing of vision and hearing, including measuring static and dynamic visual acuity, night vision, response to glare, color vision, visual fields and depth perception. She also believes that a more extensive history of the use of medications and alcohol should be included. According to Dr. Schler, the more comprehensive testing would not be difficult and would not require expensive equipment. The additional equipment required for more precise vision testing could be found at most optometrist's offices in addition to the equipment normally found in a doctor's office. Further, these tests can be effectively and inexpensively accomplished through cooperative arrangements with established vision-related companies like Pearle Vision Center. Dr. Schler makes the clear distinction between the abilities of a healthy individual as opposed to a sick person of any age. An example she gave is that cardiac sudden death is estimated to occur in thirty percent of all people who have heart disease. Forty-year old men or women who have heart attacks have a thirty percent rate of sudden death, the same as with an eighty year old man or woman. Chronic heart disease can be easily diagnosed with a physical examination, according to Dr. Schler. Dr. Schler believes that vascular disease could be screened to eliminate the risk of strokes. Dr. Schler also states that a lot of vascular disease is asymptomatic for the first twenty to thirty years but can be identified with testing. In Dr. Schler's opinion the standard confidence rate, with which you predict accuracy in the kinds of physical examinations which she described, is approximately ninety-five percent, i.e., a person's capabilities can be predicted with ninety-five percent accuracy from the examinations given by Dr. Schler and her colleagues. In Dr. Schler's practice she finds that she screens out a person as unsafe to drive prior to the DMV doing so through their driver license retesting program. Dr. Schler stated that the application for a license to drive a school bus, although she feels it is inadequate to test school bus drivers, is still much more comprehensive than the driver licensing and retesting given for a regular drivers license. In Dr. Schler's opinion, the written statements by Dr. Julian Waller, M.D., stating that physical changes take place in people that are unmeasurable was the state of medicine ten or twenty years ago. Currently, in Dr. Schler's opinion, medical doctors are very good at screening out even subtle changes of illness and aging especially as related to driving ability. Dr. Schler clearly believes that in healthy older drivers, who have the benefit of experience in driving a school bus, experience has been proven to be a major benefit in terms of safety. According to Dr. Schler, age should only be used as an added safety factor if there were no other way of safely and effectively testing school bus drivers. In her opinion, however, the State of Florida can today efficiently, cheaply and accurately test these drivers annually to determine which drivers are safe and which drivers are not. Dr. Schler's testimony and opinions are taken as creditable and are accepted instead of the opinions of Dr. J. Waller. Dr. J. Waller's opinions and information are out of date and out of step with the current state of the art in geriatrics. Individual Performance Testing, Training and Evaluation Harvey Leonard Sterns, Ph.D., currently holds three titles: 1) research professor of psychology at the University of Akron, Ohio, 2) Director, Institute for Life-Span Development and the Gerontology Fellow at the University of Akron, and 3) research professor of gerontology at Northeastern Ohio University College of Medicine. Dr. Sterns is an expert in the field of industrial gerontology. Dr. Sterns has conducted research on driving as it relates to aging. The research conducted was keyed to the development of a diagnostic battery of tests to determine areas in which older drivers may have difficulty and to assist them with the training program so that they may perform at higher levels. This research also included an individual training approach which was modified in subsequent years in an attempt to attain maximum efficiency. As a foundation for his research, Dr. Sterns identified three issues of observable approaches to the driving analysis which are called intrinsic predictors. These are 1) perceptual style, i.e., how people extract relevant and irrelevant information from the visual array; 2) selective attention, i.e., a measure of central processing ability that is highly predictive of incident involvement; and 3) perceptual motor reaction, i.e., dealing with simple and complex choices in complex reactions. Dr. Sterns also researched the actual driving of a school bus in Alabama. In this research he examined the job of school bus driver from a task analysis perspective and observed first hand what was actually involved in driving the school bus. Based on this experience Dr. Sterns believes that driving a school bus on a specified route is different than normal everyday driving because, for example, the school bus driver is clearly aware of problem situations coming up such as demanding intersections or curves or other areas of potential danger. Dr. Sterns points out that school bus accidents are reported any time anything happens to the bus, including a bus getting stuck in the mud, scratched, or backed into a pole or into another bus. This is described in the literature as an "accident or a crash." The majority of accidents that we know about are property damage as opposed to accidents involving injury or fatalities. Dr. Sterns stated that Dr. Julian Waller in his book Injury Events states that school bus safety is not a major safety problem because out of approximately twenty million children who are transported by school busy every year there are twenty fatalities. School bus transportation may well be the safest form of transportation there is. Dr. Sterns cites numerous authorities and studies done both in the United States and Europe which support his opinion that experience is a critical factor in the ability to safely drive a school bus. Competency and skills involved in driving a school bus could be greatly enhanced by additional supervised on-the-road training experience together with training evaluations as opposed to using the age as criterion. The job of driving a school bus involves much more than just driving. Dr. Sterns cites the Iowa 1986 data which contained eighteen fatalities and of those, three fatalities were actually on the bus. Therefore he believes that a check ride with passengers actually on the bus is an important part of the observation of the performance level of the school bus driver. According to Dr. Sterns, the addition of the intrinsic performance evaluators which have relative predictive validity, such as selective attention, perceptual style and motor reaction time, together with enhanced training and on board evaluation of school bus drivers, is far superior to determining who a good employee performer might be as opposed to the use of any arbitrary chronological age. It is Dr. Sterns' opinion that if it were necessary to be very conservative in the setting of standards for school bus drivers, one commonly used technique in industrial psychology is that of using the median of the young group. That is, taking the younger group of employees and determining their median standard of performance and using that median as the cut off score for any older person with the result that any older person performing below that median cutoff score would not be allowed to drive a school bus. In metro transit authorities (public transportation), a method used to judge performance is to have a "checker" ride the bus as a passenger or follow in a car to see whether or not the bus driver is performing appropriately. This method would be of practical use in training school bus drivers as well. Past driving record is predictive of future accident risk. In a study of commercial drivers, performance training was demonstrated, with statistical significance, to reduce accident risk by approximately 16 percent. Performance evaluation can appropriately exclude young drivers who have functional problems related to drug or alcohol use or neurological deficits. Performance training has been developed and demonstrated to be effective at improving the performance level of both older and younger adult drivers. Performance evaluation through "on board" check rides, a "follow car" procedure, or closely "monitoring" drivers can reduce accident risk, especially when such evaluation is based upon an accurate task analysis. The 1969 Promisel Study as discussed by Dr. Sterns also relates the benefit of experience even for drivers who began to drive a school bus in their sixties, because even these drivers show an improvement in their driving ability with training and experience. The study also states on page 90 that there is no evidence to show that the severity of an accident is related to driver age and further that more than half or 50-60 percent of the difference that occurs in accident rate can be predicted only by factors other than age. Performance evaluation over a period of several days, as occurs in Florida's public school bus driver licensing process, is more reliable in determining driver capability than the single-incidence licensing which is typical of the private, noncommercial licensing process.
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.
