The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
The Issue The issue in this case is whether just cause exists for Petitioner to terminate Respondent from his job as a school bus operator.
Findings Of Fact Petitioner employed Respondent as a school bus operator since October 26, 1988. His performance was generally satisfactory, except that he sometimes failed to inform Petitioner when he was going to miss work or be late. Respondent's performance assessment for the 1992-93 school year, which was dated March 8, 1993, states that Respondent was effective in all areas except "demonstrat[ing] an energetic and enthusiastic approach to work, avoid[ing] excessive or unnecessary use of sick/personal leave." In this area, he received an mark of "inconsistently practiced." On November 30, 1993, Reta Uhrich (now Bingmer), who was Respondent's supervisor, issued a written reprimand to Respondent. The reprimand states that he was a "no show, no call" on the morning of November 30 for the second time. The first time was the morning of November 10. Respondent wrote on the reprimand: "was sick--no excuses should have called." Respondent's performance assessment for the 1993-94 school year, which was dated March 9, 1994, reflects that Respondent was effective in all areas but the one noted the previous year and three others. He received "inconsistently practiced" under "report[ing] to work as expected, unless an absence has been authorized"; "report[ing] to work on time as determined by scheduled route schedules"; and "complet[ing] necessary reports accurately and submit[ting] them on time." Respondent wrote on this assessment: "Late to work is because of a bad tooth which is not repaired." Ms. Bingmer issued a written reprimand to Respondent at the beginning of the 1994-95 school year. Dated August 26, 1994, the reprimand states that on August 25, 1994, Respondent was 35 minutes late; on August 24, 1994, Respondent called 20 minutes after he was due at his first stop to announce that he had overslept and would come to work for his second and third routes; on August 23, 1994, Respondent did not show up or call in the morning, showed up for the afternoon runs without first calling, and promised Ms. Bingmer that he would be on time in the future. The reprimand notes that Respondent claimed each time that he had a problem with a bleeding ulcer and could not afford medication. The reprimand warns that the next offense may result in a three- day suspension without pay. Ms. Bingmer issued Respondent a written reprimand on October 4, 1994, due to Respondent's failure to report for work or telephone to report off work for the entire day of September 23, 1994, and the morning of September 30, 1994. The reprimand states that Respondent assured Ms. Bingmer that his medical and personal problems were under control and that he would be at work each day on time. The reprimand concludes by noting that Ms. Bingmer had recommended that Respondent be suspended without pay for three days, but her supervisor ordered only verbal and written reprimands. The reprimand warns that any further problems could result in a "much stronger result." On October 25, 1994, Respondent, Ms. Bingmer, and others attended a predetermination conference. Respondent assured the representatives of Petitioner that he would improve his attendance. However, on November 10, 1994, Respondent called at 6:10 am and said his car would not start. Although this was notice of his absence, the notice was late. On November 18, 1994, Respondent called and said he would be out due to a toothache. On November 29, he called again, saying he would not be in because his car would not start. On December 2, 1994, Ms. Bingmer learned that the driver's license of Respondent had been suspended. She instructed him to go to the driver's license office immediately and resolve the problem, which involved his insurance. Respondent went to the driver's license office the same day and resolved the problem. However, he did not contact anyone representing Petitioner on the following workday, nor did he show up for work. Late in the day, he left a note for Ms. Bingmer stating that he would call early the following day and see her. But he neither called nor reported to work the following day, nor the day after that. The major problem created by Respondent was that he either gave no notice when he was going to miss or be late for work, or he gave inadequate notice. With notice, Petitioner could obtain a substitute bus driver. Without notice, children were left standing at their bus stops waiting needlessly for their bus. The employment contract provides that Petitioner may terminate an employee for "just cause." Petitioner has demonstrated that just cause exists for the termination of Respondent.
Recommendation It is hereby RECOMMENDED that the School Board of Lee County enter a final order terminating Respondent. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 30, 1995. COPIES FURNISHED: Daniel H. Kunkel Kunkel Miller & Hament Southtrust Bank Plaza Suite 785 1800 Second Street Sarasota, FL 34236 Robert J. Coleman Coleman & Coleman P.O. Box 2089 Ft. Myers, FL 33902 Patrick E. Geraghty Patrick E. Geraghty, P.A. P.O. Drawer 8 Ft. Myers, FL 33902-0280
The Issue Whether Respondent has committed a discriminatory employment practice against Petitioner by virtue of Petitioner's race. (In deference to Petitioner’s preference, his race will be referred-to as "Black.")
Findings Of Fact Lenore Kimmons is an adult "White" female. She was initially hired in July 2004, in Milton, Santa Rosa County, Florida, by Laidlaw Education Services (Laidlaw) as a school bus driver. At that time, Laidlaw had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 13, 14, and 15.) Effective April 1, 2005, Laidlaw and Amalgamated Transit Union (Local 1395/AFL-CIO), a mechanics’/maintenance union, entered into a collective bargaining agreement. (Stipulation 8.) This collective bargaining agreement (mechanics’ union contract) continued to be in effect when Petitioner was initially hired by Laidlaw, and by the use of executed “successor clauses,” continued in effect through the period of alleged discrimination. (Stipulation 8.) In the absence of any persuasive evidence to the contrary, the undersigned takes the “effective date” of the mechanics’ union contract to constitute its “ratification” date, as well. Petitioner is an adult “Black” male. Laidlaw initially hired him in Milton, Florida, on September 18, 2006, as a "B Mechanic.” At that time, Laidlaw still had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 1, 2, 3, and 7.) Petitioner was subject to the mechanics’ union contract, beginning with his September 18, 2006, date of hire and continuing past the alleged date of discrimination in 2008. Petitioner has had extensive heavy vehicle mechanical experience since 1989. He has worked for the United States Air Force and Department of Defense in Europe, and he supervised two vehicle maintenance shops prior to being hired by Laidlaw. He holds an Associate degree in automotive technology. Upon being hired in July 2004, Ms. Kimmons had begun work as a school bus driver (Stipulation 14) and shortly thereafter began to train as a mechanic. When she began training as a mechanic, she was reclassified into a “C Mechanic” position. As a “C Mechanic,” Ms. Kimmons ceased to be subject to the bus drivers’ union’s collective bargaining agreement and became subject to the mechanics’ union contract that eventually governed Petitioner. Sometime in 2006, Ms. Kimmons began to clerk in the office, but she continued to be classified as a “C Mechanic” and continued to be subject to the mechanics’ union contract. The mechanics’ union contract makes a distinction between employees hired before its ratification on April 1, 2005, such as Ms. Kimmons, and employees hired afterwards, such as Petitioner. It does not make a distinction based upon when one became a mechanic. The mechanics’ union contract provides, in pertinent part: MAINTENANCE DEPARTMENT JOB DESCRIPTIONS/CLASSIFICATIONS ARTICLE 28 Section 1 only applies to current employees who are already employed prior to the ratification of this labor agreement. * * * “A” Mechanic – required to have a minimum of 2 years experience Is defined as maintenance employee(s) who hold a Florida State Certification for School Bus Inspections. Required to work with limited supervision. The employee should have good skills and who is capable of repairing bus and white fleet including brake inspections and repair. The employee is capable of assisting and instructing lower classification mechanics. Must have and maintain a Florida CDL including “S” endorsement. “B” Mechanic – required to have a minimum of 3 years experience Is defined as maintenance employee(s) who assist higher classification mechanics. Work with supervision when required. Assists with inspection including all necessary repairs. Must have and maintain a Florida CDL including “S” endorsement. “C” Mechanic – entry level employee(s) Is defined as maintenance employee(s) who shuttle, clean, fuel, and as otherwise directed by management. Also responsible for minor cosmetics around shop such as crush oil filters, sweep areas in need, empty trash, dip tanks, and assist mechanics if necessary with full supervision by other Management personnel. Must have and maintain a Florida CDL including “S” endorsement. * * * Section 5 As of the ratification of this AGREEMENT the job descriptions for all new hires will be as follows: * * * “A” Mechanic Is defined as a maintenance employee who holds a minimum of three (3) ASE School Bus Certifications to include at least a) Air Brake, b) Steering and Suspensions, c) Diesel Engines and a Florida State Certification for School Bus Inspections. The employee is required to have a minimum of 3 years of “medium/heavy duty” technician experience (“B” Mechanic level). The employee must have good skills, is capable of diagnosing and repairing school buses and white fleet including brake inspections and repair in a reasonable length of time, in a professional manner and be able to work with limited supervision. The employee is also capable of assisting and instructing lower classification mechanics. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “B” Mechanic Is defined as a maintenance employee who holds a minimum of two (2) ASE School Bus Certifications to include at least a) Air Brake[1] and b) any of the other six (6) ASE School Bus Certifications. The employee is required to have a minimum of 2 years of “medium/heavy duty technician experience. The employee must also have good working skills, be able to assist with any inspection and all repairs as well as work with supervision when required. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. “C” Mechanic Is defined as a maintenance employee who is capable of shuttling, cleaning fueling and as otherwise directed by Management. The employee is responsible for minor cosmetics around the shop such as crush oil filters, sweep areas in need, empty trash, dip tanks and assist mechanics if necessary with supervision by other maintenance personnel. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. (Emphasis supplied) At no time material has either Petitioner or Ms. Kimmons ever been a member of the mechanics’ union, but from its inception, the collective bargaining agreement between Laidlaw and the mechanics’ union applied to all mechanical employees, regardless of any employee’s union membership or lack of union membership. Petitioner has been outspoken in his refusal to join the mechanics’ union. Laidlaw was purchased by First Student, Inc., on October 1, 2007. (Stipulation 9.) Upon First Student, Inc.’s purchase of Laidlaw, Petitioner and Ms. Kimmons became employees of First Student, Inc. (Stipulation 10.) First Student, Inc., is the only Respondent in this cause. Upon First Student, Inc.’s purchase of Laidlaw, the mechanics’ union contract then in existence was carried over to bind First Student, Inc. At no time material has either Petitioner or Ms. Kimmons possessed an ASE School Bus Certification in Air Brake, an ASE School Bus Certification in Steering and Suspensions, or an ASE School Bus Certification in Diesel Engines. (Stipulations 4, 5, and 6.) Petitioner and Ms. Kimmons took the examination for the Florida State Certification for School Bus Inspections in February 2008. (Stipulations 11 and 12.) Petitioner could not demonstrate that Ms. Kimmons did not have the prerequisite number of years of experience or other qualifications to sit for the examination. Petitioner’s testimony, that in February 2008, and up to the date of hearing herein, he was Respondent's only “Black” mechanic in Mechanic Classes A, B, and C, was not refuted. In February 2008, Petitioner and Ms. Kimmons both passed the Florida State Certification for School Bus Inspections examination. At that time, both of them believed that successful completion of the examination would entitle them to be appointed as Class A mechanics, to a rise in pay grade, and to a $1.00/per hour raise in pay. (Stipulations 16, 17, and 18.) Lenore Kimmons requested an increase in pay and an increase in grade from “C Mechanic” to “B Mechanic” after she completed her Florida State Certification for School Bus Inspections. (Stipulation 16.) Petitioner requested an increase in pay and an increase in grade from “B Mechanic” to “A Mechanic,” after he completed his Florida State Certification for School Bus Inspections. (Stipulation 18.) In February 2008, Ron Kramer was the immediate supervisor of both Ms. Kimmons and Petitioner. He notified his superiors, up the line of command, that Ms. Kimmons and Petitioner had passed their February examination and that he, Mr. Kramer, believed that each of them was entitled to a rise in grade and to a commensurate raise in pay. (Stipulations 16, 17, and 18.) Approximately two months passed after the February 2008, examination, and Ms. Kimmons did not receive her requested rise in grade or raise in pay. Petitioner, likewise, did not receive any rise in grade or raise in pay. The union filed grievances on behalf of Petitioner and on behalf of Ms. Kimmons, resulting in an increase in pay and a rise to "B Mechanic" for Ms. Kimmons, but no raise and rise to “A Mechanic” for Petitioner. (Stipulations 17 and 20.) Pursuant to the union contract and Ms. Kimmons’ hire prior to its ratification, the raise/rise from Class C to Class B did not require any ASEs, but a raise/rise from Class B to Class A would have required Petitioner, who was hired after contract ratification, to have three specific ASEs that he did not possess. These ASEs were in Air Brake, Steering and Suspensions, and Diesel Engines. Ms. Kimmons had been hired in 2004, before the 2005, effective date of the collective bargaining contract for mechanics. Petitioner had been hired in 2006, after the 2005, effective date of the collective bargaining agreement for mechanics. Petitioner's rate of compensation was $12.99/hour, when his request for a raise in pay and rise in grade was denied. Had his grievance been successful, he would have received $1.00 more per each hour worked as an "A Mechanic." (Stipulation 19.) First Student, Inc., ceased all operations in Santa Rosa County, effective June 30, 2008. (Stipulation 21.) Petitioner has not been employed by First Student, Inc., since June 30, 2008. (Stipulation 22.) Most, if not all, of First Student, Inc.’s employees in Santa Rosa County, including Petitioner, were hired by Durham School Services in July 2008, at the same respective pay and grade at which they were employed by First Student, Inc., on June 30, 2008. (Stipulation 24.) Petitioner is currently employed by Durham School Services and has been so employed since July 1, 2008. (Stipulation 23.) Had Petitioner received his raise in pay and rise in grade in February 2008, under First Student, Inc., he would have continued to have received pay and all emoluments at that higher grade and rate after Durham School Services took over in July 2008.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 6th day of February, 2009.
The Issue The issue is whether First Transit, Inc. (“Escambia County Area Transit” or “ECAT”)1/ committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by subjecting her to disparate treatment and/or by retaliating against her.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On June 19, 2012, Ms. McMillan signed a document entitled “Escambia County Area Transit Cellular Phone Policy” which provided that: While on duty the use of a cellular phone or any other personal communication device is limited as follows: Employees on Company Business: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other company motor vehicle is prohibited. Push- to-talk communication devices issued by the Company may be used for work-related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable), request a 10-7, and exit the driver’s seat prior to using the cellular phone. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. The use of a cellular phone or other communications device by an employee while on the shop floor is prohibited, other than a Push-to-Talk communications device issued by the Company for work-related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. Roberta Millender has been a customer service representative at ECAT for the last four years. On July 28, 2015, at 12:25 p.m., Ms. Millender received a phone call from a customer who reported that the bus driver for Route 57 left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from the Route 57 bus in order to investigate the complaint. Because the videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.3/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. Via a letter dated August 3, 2015, Mike Crittenden, ECAT’s General Manager, notified Ms. McMillan that she was being terminated for violating Article 52 of the labor agreement. Mr. Crittenden’s letter deemed Ms. McMillan’s cell phone use to be a violation of section 1 which prohibited cell phone use while a transit vehicle is not secured. In addition, Mr. Crittenden’s letter noted that the termination was effective immediately. During the final hearing in this matter, Ms. McMillan was unable to present any evidence that any other similarly- situated bus drivers had not been terminated for using a cell phone while the buses they were driving were unsecured. Mr. Crittenden testified that 4 drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.4/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees, none of whom were aware of any bus driver being retained after violating the cell phone policy. The greater weight of the evidence demonstrates that Ms. McMillan was not discharged because of her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31th day of May, 2017.
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.
Findings Of Fact Respondent, Faye Norris, was employed by the School Board of Pinellas County as a bus driver in approximately September, 1978. While transporting children during the 1980-81 school year, Respondent frequently failed to completely stop at stop signs, drove at an excessive rate of speed for conditions, drove in excess of the applicable speed limit, and drove so fast turning corners that children almost slid off their seats and the bus left the road and drove across lawns. On a number of occasions, Respondent drove so fast that when she reached a bus stop, the bus did not stop until it had partially passed the bus stop. When loading children, Respondent frequently began to drive away from the stop before the children were seated, and on one occasion, a child was thrown to the rear of the bus. Respondent was "clocked" by grandparents of children on her bus, driving the bus at fifty-five miles per hour during rush-hour traffic in a thirty-five-mile per hour zone. Respondent regularly made fast starts and drove at an excessive rate of speed in the school yard at Norwood Elementary School and on one occasion almost ran over a teacher walking across the playground area. Frequently while Respondent was loading or unloading children she failed to activate the flashing lights on the bus and failed to extend the sidearm. On one occasion, Respondent stopped at a convenience store to make a telephone call. She left the door of the bus open and the engine running. The bus, which was full of children at the time had an automatic transmission. Some of the children on Respondent's bus were nervous about riding with her because of her speeding; and Lisa Hubbell, one of those children requested Respondent to drive more slowly because she was afraid. Parents of children riding the bus became frightened about the safety of their children. Mrs. Eatman contacted employees of the School Board on numerous occasions to complain about Respondent's driving habits, and Mrs. Robert Wallace contacted the School Board on two occasions. Jimmy M. Carlyle and Gail Edith Morrison principals at two of the schools to which Respondent transported children, received numerous telephone calls from parents complaining about Respondent's driving. Carlyle spoke to Respondent and cautioned her about speeding. Mitchell J. Kitchen, a route coordinator employed by the Petitioner, received telephone complaints about Respondent's excessive speed and discussed Respondent's driving with her on several occasions. Parris Lilly, Jr., a route supervisor, received complaints regarding Respondent's driving from principals, teachers, and citizens. He counseled Respondent on several different occasions. On March 27, 1981, Dr. Jerry C. Spears was driving through the residential neighborhood near his home when Respondent's bus came speeding toward him in his lane, and he had to drive off the street in order to avoid a head on collision. He began chasing Respondent's bus, which continued speeding and running stop signs. The bus was occupied by children. When Respondent stopped to load more children, Dr. Spears approached the bus to talk to the driver. Respondent slammed the door on his arm. Dr. Spears immediately contacted the Superintendent of Schools. Also on March 27, 1981, Respondent drove her morning route picking up children and transporting them to their schools without using the caution lights on the bus. The alternator was not working properly, and she was afraid that the bus was going to stall. Although she knows that school board policy requires that malfunctioning safety equipment be reported immediately and that the bus be driven no further, she failed to report that she was having a problem with the bus stalling until after she had driven a distance of approximately ten miles through downtown St. Petersburg during rush hour traffic. Bus drivers for the School Board of Pinellas County are required to activate the amber lights on the bus at least two hundred feet prior to the bus stop. Respondent activates those lights, if at all, fifteen feet before each stop. Walter M. Allison, III, Assistant Director of Transportation for the Petitioner, received complaints regarding Respondent's excessive speed. He told those persons complaining that their complaints needed to be reduced to writing and submitted to him. After receiving letters from several parents of children assigned to Respondent's bus and from Dr. Spears regarding his experience with Respondent, Allison reviewed Respondent's personnel file and scheduled a meeting at Bay Vista Elementary School on April 1, 1981, which meeting was attended by Respondent, a representative of Respondent's union, Mrs. Morrison, and Mr. Allison. The written complaints were reviewed with Respondent at that time. On April 2, 1981, the Superintendent of Schools wrote to Respondent advising her that she was suspended without pay effective April 2, 1981, because of her unsafe driving. He further advised her that he would seek School Board approval of that suspension and additionally would request that she be dismissed from her employment with the School Board of Pinellas County. Pursuant to Respondent's request that she be afforded an opportunity to face her accusers pursuant to a collective bargaining agreement with the School Board, a second meeting was held on April 7, 1981.
The Issue The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.
Findings Of Fact On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after 4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez. When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus, and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated. Nor should the use of profanity and the lack of respect by the students be tolerated. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus. Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West Bay. When she stopped at 20th Street, she advised dispatch that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity. Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students. Section 9.02 of Handbook provides: 9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides: 10.5.2 Handling Serious Problems Tips on handling serious problems: Follow your school's procedures for discipline or refusal of rights to ride the bus Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway. Secure the bus. Take the ignition key with you if you leave your seat. Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business. If a change of seating is needed, request that the student move to a seat near you. Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay. DONE AND ENTERED this 14th day of December, 2010, 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 14th day of December, 2010.
The Issue Does Petitioner, Seminole County School Board (Board), have just cause to terminate the employment of Respondent, Danny Jenkins, for being absent without leave and for failing to follow proper procedures for reporting absences?
Findings Of Fact The Board operates the public schools in Seminole County, Florida. It is responsible for hiring, terminating, and overseeing all employees of the school district. The Board has employed Mr. Jenkins as a bus driver in the transportation services division of the school district since 2006. Their employment relationship is subject to the collective bargaining provisions between the bus drivers' union, Seminole County School Bus Drivers' Association, Inc., and the Board, as reflected in the Collective Bargaining Agreement (Agreement), dated July 1, 2013, through June 30, 2016, and the Board's Transportation Services School Bus Operations Handbook (Handbook), dated July 2014. Mr. Jenkins had regular employment status as established by Article IX, Section 3 of the Agreement. Article XXII, Section 14 of the Agreement requires each bus driver to call in to report an absence in advance of the driver's regular starting time. The "Absentee Procedures" on page 50 of the Handbook require the same procedures. An employee is considered absent without leave (AWOL) for each day the employee is absent from work without reporting the absence using the process agreed to in the Agreement and established by the Handbook. Each day that an employee is AWOL is a separate offense for disciplinary purposes. The Agreement provides for a "progressive step process" of discipline for AWOL employees. The first offense is a reprimand with a one-day suspension. The second is a five-day suspension. The third is a recommendation for termination. The Handbook provisions for AWOL employees are similar to those of the Agreement. Employees who fail to notify dispatch within an hour past their report time are considered AWOL. The first AWOL incident results in a one-day suspension without pay. The second offense causes a five-day suspension. The third offense is cause for termination. Regular employment class employees may be suspended without pay or discharged for reasons including, but not limited to: violation of Board policy; violation of work rules; insubordination; improper use of sick leave; failure to perform assigned duties; and other infractions as set forth by the superintendent. Just cause is required. On August 11, 2014, the first day of the 2014-2015 school year, Mr. Jenkins did not show up for work. He did notify dispatch that he was not coming in. The Board took no disciplinary action for Mr. Jenkins' absence that day. On August 12, 2014, Mr. Jenkins did not report for work and did not call dispatch to report his absence from work. Ms. Murphy, assistant director of Transportation Services, sent Mr. Jenkins a letter notifying him that due to being AWOL on August 12, 2014, she recommended that he be suspended for one day pursuant to the Agreement. On Wednesday, August 13, 2014, Mr. Jenkins did not report for work. He did not call dispatch as the Handbook required. But he did call the School Board's front desk. The Board did not take disciplinary action for that absence. On Thursday, August 14, 2014, Mr. Jenkins did not report for work. He did not call dispatch or make any other form of contact with the Board concerning his failure to report for work on that day. On Friday, August 15, 2014, Mr. Jenkins did not report for work. He did not call dispatch. At 12:08 a.m. that day, he sent a fax addressed to Ms. Murphy saying that he would not be able to come into work. The fax also contained a narrative disputing previous recommendations for discipline, discussing alleged poisoning from fumes on the bus, and giving reasons why he had not taken a physical to obtain a current medical certification as required. On Monday, August 18, 2015, Mr. Jenkins did not report for work. He did not call dispatch or otherwise contact the Board about his failure to report for work. Mr. McKenzie sent Mr. Jenkins a letter on August 18, 2014, stating that Mr. Jenkins must contact him by Thursday, August 21, 2014, to discuss his employment status. Mr. McKenzie also called Mr. Jenkins' home and cell telephone number in order to "help him as best as I can to get him to come to work." Mr. Jenkins did not respond. On Tuesday, August 19, 2014, Mr. Jenkins did not report to work. He did not call dispatch. He sent Ms. Murphy a fax at 9:09 p.m., on August 18, 2014, stating that he would not be able to report for work on August 19, 2014. The fax also claimed the school was not acknowledging his telephone calls. Mr. McKenzie called Mr. Jenkins four times on August 19, 2014, to discuss his absence from work and other work-related issues. Mr. Jenkins did not report to work on Wednesday, August 20, 2015. He did not call dispatch or otherwise communicate with his supervisors about his failure to report for work. Mr. McKenzie called Mr. Jenkins four times on that day to discuss his absence from work. Mr. McKenzie also e-mailed Mr. Jenkins. On Thursday, August 21, 2015, Mr. Jenkins did not report to work. He did not call dispatch an hour before his scheduled runs. He called Mr. McKenzie via telephone later that afternoon after receiving Mr. McKenzie's August 18, 2014, letter. Mr. McKenzie offered to meet with Mr. Jenkins the following day. Mr. Jenkins said he would attend. On Friday, August 22, 2014, Mr. Jenkins met with Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves. The parties discussed, among other things, the fact that Mr. Jenkins was not in compliance with the physical, medical card, training, and related commercial driver license requirements necessary for him to operate a bus. Mr. Lewis also confirmed each of Mr. Jenkins' absences and AWOL status for the dates in August where he did not report for work and did not call dispatch. This is a party admission admissible under the hearsay exception created by section 90.803(18)(a), Florida Statutes. The vast majority of the Board's evidence was hearsay, not subject to a hearsay exception. But Mr. Jenkins' admission to Mr. Lewis, coupled with the fact that Mr. Jenkins' testimony at the hearing basically did not dispute the charges, so much as offer reasons why he could not come to work and reciting many of his concerns, including student verbal and physical abuse on the bus, bullying of his children, and poisoning of some sort related to his employment. To the extent that the testimony of Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins' testimony, the undersigned found Mr. Lewis and Mr. McKenzie more credible. The outcome of the meeting was that Mr. Jenkins was expected to report for work on Monday, August 25, 2014. Immediately after the meeting, Mr. Lewis met privately with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could either resign or come in the following Monday and do everything he needed to do to retain his employment. Mr. Jenkins did not report for work on August 25, 2014. He did not contact dispatch or otherwise communicate with his supervisors or the Board. Mr. Lewis called Mr. Jenkins on Monday after he failed to report for work and offered to pick him up and bring him to work. Mr. Jenkins declined that offer. After Mr. Jenkins did not report for work on August 25, 2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins notifying him of a second AWOL offense and Mr. Lewis's recommendation that Mr. Jenkins be terminated from employment. On Tuesday, August 26, 2014, Mr. Jenkins did not report for work. He did not contact dispatch or otherwise communicate with his supervisors or the Board. That same day, the superintendent sent Mr. Jenkins a letter noting that Mr. Jenkins had been AWOL on August 14, 20, 21, 25 and 26, 2014. The letter also noted that Mr. Jenkins failed to follow the required notice procedures for his absences on August 15, 18, and 19, 2014. The superintendent's letter notified Mr. Jenkins that he was recommending that the Board suspend Mr. Jenkins without pay at the September 9, 2014, Board meeting and that the superintendent would recommend Mr. Jenkins' termination at the October 14, 2014, board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Seminole County School Board, enter a final order finding that there is just cause to terminate Respondent, Danny Jenkins', employment and dismissing him from his position as a regular employee bus driver with the Seminole County School District. DONE AND ENTERED this 13th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2015.
