The Issue Whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner for the position of Training and Safety Specialist in November 1998 and December 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner first began to work for Respondent as a substitute school bus driver in November 1988, approximately half-way through the 1987-88 school year. He worked as a substitute bus driver for the remainder of that school year and approximately half of the 1988-89 school year until he was hired as a full time bus driver in January 1989. He continued to work as bus driver through the 1993-94 school year, a total of six and a half school years. In August 1994 (the start of the 1994-95 school year), Petitioner was hired as a para-professional, i.e., teacher’s assistant, in Respondent's Adjudicative Youth Program. Petitioner is still employed in that position. The program serves students who have previously been in the juvenile justice system and are now being reintegrated into the school system. Petitioner does not hold a teacher’s certificate. However, Petitioner has gained some teaching experience in his current position because he occasionally serves as a substitute teacher. Petitioner received an associates degree in criminal justice in 1995. He has taken additional classes towards a bachelor's degree, in business administration and in exceptional student education. However, he is at least a semester short of a degree in either subject. After Petitioner left his position as a school bus driver in 1994, he did not maintain his certification by taking the required eight hours of annual “in service” training and by taking an annual physical as required by Rule 6A-3.0141(9), Florida Administrative Code. In November 1998, Respondent posted notice of a vacancy for the position of Transportation and Safety Specialist. The position was coming open because Joe Dixson, the Training and Safety Specialist at that time, was retiring. The Training and Safety Specialist supervises the bus driver trainers and is responsible for coordinating the initial and continuing "in service" training of the bus drivers. The Training and Safety Specialist also serves as a liaison with law enforcement officials in the event a school bus is involved in an accident and is responsible for maintaining the bus drivers' records, including the commercial drivers license (CDL) records, which were examined by the State annually. The minimum qualifications for the position, as set forth in the November 1998 job posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from an accredited college or university with a Bachelor’s degree or equivalent Vocational/Technical training or certification. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Florida Department of Education teacher [sic] certificate in school bus driver training. Physical Requirements: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. Seven individuals submitted applications for the position, including Petitioner and Sharon Arnold. Petitioner, Ms. Arnold, and all of the other applicants were interviewed on November 20, 1998. The interviews were conducted by a five-member committee who scored each applicant on various issues. Petitioner's average score (82 out of 120) was the lowest of all of the applicants interviewed. By contrast, Ms. Arnold's average score (100.4 out of 120) was the third highest.1 Neither Petitioner nor Ms. Arnold were qualified for the position because they did not have a bachelor's degree or "equivalent Vocational/Technical training or certification." The certification was explained at hearing to be a teaching certificate issued by the Department of Education (DOE) to a plumber, for example, to teach a vocational class in plumbing. This explanation is consistent with DOE's rules. See, e.g., Rule 6A-4.076, Florida Administrative Code. None of the other applicants had these minimum qualifications either. Accordingly, Mr. Murphy recommended to the School Board that the minimum qualifications be changed to eliminate the requirement for a bachelor’s degree and to require only an “ability to obtain” the DOE certificate in bus driver training. The School Board approved Mr. Murphy’s recommendation. The purpose of the change in the minimum qualifications was to increase the pool of eligible applicants for the position. The effect of the change was to make Petitioner, Ms. Arnold, and potentially others eligible for the position. In December 1998, Respondent re-posted the notice for the Transportation and Safety Specialist position. The minimum qualifications for the position, as set forth in the December 1998 posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from high school or completion of GED. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Ability to obtain a Florida Department of Education certificate in school bus driver training. Physical Requiriments: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. The major functions and illustrative duties of the position were not changed in the December 1998 posting. The salary grade (14) and salary range ($28,800–32,490) also remained the same. The salary for the Transportation and Safety Specialist position was based upon 12 months of work. Petitioner's salary in December 1998 was $17,518, but that was based upon a 194-day (i.e., school year) contract period. Seven individuals, including Petitioner and Ms. Arnold, applied for the position as re-advertised. Of the original applicants, Ms. Arnold and Petitioner were the only individuals who reapplied. Petitioner, Ms. Arnold, and the other applicants were interviewed on December 9, 1998. The applicants were interviewed by a four-member committee who scored each applicant in the same manner as before. Ms. Arnold received the highest average score from the interviewers, 107.5 out of 120. By contrast, Petitioner's average score was only 82.5 out of 120.2 Based upon the interviews, the committee recommended to Mr. Murphy that Ms. Arnold be hired for the position. Mr. Murphy accepted the committee’s recommendation and Ms. Arnold was hired as the Transportation and Safety Specialist starting in January 1999. She was hired at the minimum salary, and she is currently employed in that position. Ms. Arnold was first employed by Respondent in March 1987, as a substitute bus driver. She was hired as a full-time bus driver in May 1987, in advance of the 1987-88 school year. She continued to work as a bus driver until she was hired as Transportation and Safety Specialist, a total of 11 school years. In addition to her duties as a bus driver, Ms. Arnold served as a bus driver trainer since 1993. In that capacity, she provided on-road training to newly-hired and prospective bus drivers by observing their performance and helping them learn their routes. Ms. Arnold volunteered for these additional duties, although she was paid her hourly wage for conducting the training. She provided this training during the week between her morning and afternoon bus driving shifts, and sometimes on the weekends. Petitioner never served as a bus driver trainer. Ms. Arnold is certified by the State as a CDL trainer and examiner for Class A, B, and, C vehicles. As a result, she is authorized to teach and test persons applying for a CDL license to drive a school bus, tractor trailer, and other large vehicles. Ms. Arnold assisted the Department of Highway Safety and Motor Vehicles staff as a CDL examiner during the summers and received positive feedback on her work. Petitioner is not a certified CDL trainer or examiner. Ms. Arnold is also certified by DOE as a school bus driver trainer. She holds a Level 1 certification which allows her to administer classroom training, as well as a Level 2 certification which allows her to administer on-road training. Petitioner does not hold the DOE certifications, although he has the ability to obtain them. Ms. Arnold received the DOE certifications in October 1998 after a week-long seminar paid for by Respondent. Ms. Arnold was recommended for the seminar by Mr. Dixson and her area supervisor. Mr. Dixson recommended her because of the dedication and hard work that she exhibited when working as a bus driver trainer. Other drivers were recommended for the seminar as well; however, Petitioner was not one of those recommended. In addition to her formal duties as a school bus driver, Ms. Arnold volunteered at Frost Proof Elementary School prior to the start of each school year to help answer parents' questions about their child's school bus route. There is no evidence to support Petitioner's contention that the minorities are systematically overlooked for professional positions in Respondent's transportation department. To the contrary, the evidence shows that since 1993 when Mr. Murphy was hired as the administrator responsible for the transportation department, minority employment in advanced positions has increased significantly, from zero to six (out of 18) bus driver trainers and from zero to six (out of 27) professional staff.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner’s charge of discrimination. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2002.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Jerry McCoy, is an African American and is a member of a class protected by Chapter 760, Florida Statutes. Petitioner worked as a tanker truck driver for Florida Rock from 1980 until October, 1993. During his employment, he was assigned to Florida Rock's terminal in Panama City, Florida. Respondent, Florida Rock & Tank Lines, Inc., is a transportation company engaged in the hauling of liquid and dry bulk commodities throughout the United States. Respondent transports gasoline, diesel fuel, asphalt, chemicals and other hazardous and corrosive materials. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner, during his 13-year employment with Florida Rock, was generally considered a good truck driver. Over the years, Petitioner received several compliments from customers, safety bonuses and emblems, and a set of his and her watches after 10 years of maintaining a good safety record. On the other hand, Petitioner also received several customer complaints, committed some safety violations, and was banned from two customers' terminals. The trucking industry is heavily regulated. As such, Respondent must obey federal, state, county and city traffic, and transportation laws. In addition, Respondent must follow federal and state environmental laws and regulations because it transports toxic and hazardous substances. The transportation and environmental laws and regulations are strictly enforced. Minor violations can result in substantial penalties. Respondent or the driver, or both, can be fined for violations of any of these laws. To ensure compliance with the federal, state, county, and city laws, and to satisfy requirements of its customers, Respondent established a safety program. Respondent's safety policies were developed as a result of experience in tank truck transportation and, when followed by drivers, have resulted in safe loading, transportation, and unloading of products that Respondent transports. To enforce the safety program, Respondent adopted a points system. Under the points system, a driver is assessed points for preventable violations of a safety policy or procedure. A driver who accumulates 24 points within one year is automatically terminated. On a driver's anniversary date, all points assessed during the previous year are removed from the driver's record and the driver begins the year with a clean company driving record. The rules, policies, and procedures of the safety program are contained in the driver's safety manual. All drivers receive a copy of the safety manual when hired. All drivers also receive safety training before being allowed to operate a truck transporting hazardous materials. In addition, to maintain driver awareness of safety rules and regulations, Respondent conducts monthly safety meetings at each terminal. The meetings are conducted by the terminal manager or safety supervisor, or both, and consist of a review of safety rules, policies, procedures, and equipment and recent changes in relevant laws. The safety program is administered by the safety department of Respondent. Luc Cleyman, Director of Safety, directs the daily operations of the safety department. When a spill, mixture, or other violation of the safety program occurs, the driver's terminal manager initiates a review of the incident to determine whether it was preventable or non-preventable. If the terminal manager determines that the violation was preventable, the driver is assessed points and/or subjected to other discipline based on the type and severity of the violation. A driver is not assessed points for a non- preventable violation of safety rules and procedures. In certain situations, Mr. Cleyman may instruct the terminal manager to assess a number of points greater or less than the amount specified in the safety manual, and to administer further disciplinary action for safety violations. Under the safety program, management has the authority to administer further disciplinary action for a safety violation, if in their opinion it is warranted. In addition, management has the authority to impose less discipline than that which is set forth in the safety manual. The safety department reviews all citations issued to verify that the correct number of points was assessed. An employee's race is not referenced in the files maintained by the safety department. Consequently, in disciplinary actions, management does not know the race of an employee unless the individual in management knows that particular employee. In this case, unlike most terminal managers, Nancy Dinnes, the terminal manager at the Panama City Terminal, always consulted with the safety department before her initial assessment of points against a driver for a safety violation. Respondent's safety program includes an appeal procedure by which a driver may appeal the determination that an incident was preventable and/or the assessment of points. The safety manual provides: The driver has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the driver receives his/her notification. Once the appeal is received in the Safety Office, the incident facts will be reviewed by the Accident Review committee and/or the Violation Review Committee. Each committee will be comprised of the Vice President, Division Vice President, and the Director of Safety. The Committee's decision regarding work- related injury claims and spillages, mixtures, and contaminations will be final in all cases. In the event a driver does not agree with the committee's decision regarding a traffic accident, then he/she must submit, in writing, his/her disfavor to the Safety Department within ten (10) days after his/her receipt of the committee's decision. The accident facts will then be submitted to the National Safety Council Accident Review Committee for their review and decision. Their determination will be final in all cases. To encourage drivers to follow the safety program's policies and procedures, Respondent pays substantial quarterly and annual safety bonuses to eligible drivers. An eligible driver receives a quarterly safety bonus of four percent of his previous quarter's earnings and an annual safety bonus of two percent of his previous annual earnings. A driver is eligible to receive a quarterly safety bonus unless he or she is assessed six or more points during the quarter. A driver who accumulates 21 or more points during the year is not eligible to receive an annual safety bonus. Quarterly bonuses are paid in the month following the end of the quarter. Annual safety bonuses are paid in January of the following year. The amount of quarterly and annual safety bonuses is substantial. Drivers always know when they are due a bonus and whether that bonus has been paid. If a driver does not receive a quarterly or annual safety bonus he or she has a right of appeal. The safety manual provides: It is Florida Rock and Tank Lines, Inc.'s desire to pay all earned Quarterly and Annual Safety Bonuses. Any driver that does not qualify for the quarterly or annual bonus has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the quarter in question has ended or the year in question has ended. Once the appeal is received in the Safety Office, the case will be reviewed by the Bonus Review Committee. The Bonus Review Committee consists of the Vice President, Division Vice President, and Director of Safety. Their findings and recommendations will be final. Petitioner was hired as a driver of tractor-trailer trucks at Respondent's Panama City Terminal on February 28, 1980. His duties included loading petroleum products at distribution terminals and transporting them to gas stations and other facilities in the southeastern part of the United States where he would unload the product into storage tanks. Petitioner was aware of the company's safety policies and procedures. In particular Petitioner was aware of the safety policies and procedures involved in this action. On April 13, 1993, Petitioner delivered resin, a very thick material, to the Georgia-Pacific facility in Albany, Georgia. The hose used for unloading resin is two inches in diameter. The hose was in bad shape. It's end blew off while Petitioner was pumping resin into the storage tank. A spill, which is a potential violation of the company's safety policy, occurred. The violation carries an assessment of twelve points. Petitioner brought the failed hose back to the terminal and showed it to Nancy Dinnes. Upon investigation, Mr. Cleyman was told by a representative of Georgia-Pacific that Petitioner was pumping the resin too fast and blew the end of the hose off. The same Georgia-Pacific representative also complimented Petitioner for his help in containing and cleaning up the spill. Both Ms. Dinnes and Mr. Cleyman were of the opinion that hoses did not fail unless Petitioner was forcing too much product into the hose by pumping the product too fast. However, both conceded that Petitioner's claim that the hose failed while he was properly unloading the resin could have occurred. Both gave Petitioner the benefit of the doubt. Therefore, no points were assessed against Petitioner since the spill was deemed unpreventable due to the unpredicted failure of the hose. On April 28, 1993, Petitioner was dispatched to deliver ethanol no-lead regular fuel to Sunshine Jr. Store No. 28 in Springfield, Florida. When he arrived at the store, Petitioner testified that he was unable to determine into which tank to dispense the ethanol unleaded regular fuel because the storage tanks were not properly marked for ethanol fuel. Likewise, the pumps were not marked for ethanol fuel because the store had not sold ethanol fuel for several months. There were separate storage tanks marked for regular unleaded fuel, mid- grade fuel and premium fuel. Because he was unable to determine the correct tank into which to drop his load, he asked the store manager to identify the correct tank. The store manager did not know and called Sunshine Jr.'s corporate offices. After the store manager contacted someone at the corporate office, the store manager told Petitioner to unload the no-lead regular fuel into the premium fuel tank. Without calling the terminal, Petitioner unloaded regular gasoline in with premium gasoline causing a mixture of the two fuels and downgrading the premium fuel to a lesser octane fuel. Petitioner did not draw a diagram of the storage tanks with their markings on the Bill of Lading for the delivery. In instances where the storage tanks are not clearly marked, a driver is required to diagram the location of the storage tanks and the type product each contains so that the information will be on record at the terminal. Petitioner admits that he was aware of the requirement of a diagram under such circumstances. His failure to diagram the storage tanks at Sunshine, Jr. Store No. 28 demonstrates that Petitioner was not confused by the markings on the storage tanks. Indeed he had been disciplined for unloading fuel into the wrong storage tank the previous year at Rice's Grocery. The mixture resulted in the loss of over 1,500 gallons of fuel and caused a hazardous situation. Eventually, the fuel was removed and transported to another location. Because of the dangers to the public from a mixture of hazardous materials and the substantial penalties resulting from such a violation of environmental laws and regulations pertaining to the transportation of petroleum products, Respondent's safety program includes a policy imposing 12 points, or further discipline up to discharge, for preventable mixtures of fuel and other hazardous materials. Respondent's load/unload procedures in the driver's safety manual require a driver before unloading to: Check the fill pipe identifications to be sure they are labeled properly and indicate the same product you intend to unload. Do not depend on identification by others. If fill pipes are not properly identified and you are unable to personally identify the contents of the tank, call your terminal for instructions. Failure to do so may endanger lives, property and the environment. Thus, a driver who cannot determine the correct tank in which to unload may not rely on others for identification of the proper storage tank, but must contact the terminal manager for instructions. A driver who contacts the terminal for instructions does not violate safety rules and procedures if a mixture results. As indicated, Petitioner did not call the terminal for instructions. Petitioner's very confusing testimony to the contrary is not credible. Petitioner admits the above procedure is correct. On April 29, 1993, the day after Petitioner's delivery, Sunshine Jr., Stores contacted terminal manager Dinnes to inform her that Petitioner had unloaded ethanol unleaded fuel into the premium fuel storage tank causing a mixture of the two fuels. Ms. Dinnes investigated the report. As part of her investigation, Respondent sent Fernando Berrios, mechanic, to the site to conduct a visual inspection of the storage tanks. Mr. Berrios found that the tanks were properly marked. Additionally, a diagram identifying the layout of the store's storage tanks with their markings was displayed in the store's window. Mr. Berrios drew a diagram showing the layout of the storage tanks with their markings at Sunshine Jr. Store No. 28 on the face of the Truck Bill of Lading pursuant to which Petitioner had delivered the fuel. After her investigation, Ms. Dinnes contacted the safety department and informed Mr. Cleyman that Sunshine Jr. Stores had reported a mixture and to discuss the appropriate discipline. Mr. Cleyman and Ms. Dinnes determined that Petitioner had failed to follow written company procedures pertaining to the unloading of products and mixed two different fuels together by unloading one fuel into the incorrect storage tank. Specifically, they concluded that Petitioner failed to follow written company safety procedures requiring a driver to contact the terminal if the driver is uncertain about which storage tank to unload into or the storage tanks are not properly marked and deliberately mixing two different grades of gasoline together. The mixture was clearly preventable. The points schedule in the safety manual provided that a driver who mixes product should receive twelve points. Accordingly, Mr. Cleyman instructed Ms. Dinnes to assess 12 points against Petitioner's driving record in accordance with the schedule contained in the safety manual. As a result of this violation, Petitioner did not receive his quarterly safety bonus. Petitioner did not appeal the assessment of points on his record or the disqualification for a quarterly safety bonus. Petitioner's claim that he did not receive the Sunshine, Jr. citation is not credible. Moreover, this fact is irrelevant since there was no evidence that the incident was contrived or that Petitioner was harmed if he had not received the Sunshine, Jr. citation. Petitioner admits that contacting the terminal manager is the procedure he should have followed. He did not follow that procedure. Petitioner, also admits he mixed two different grades of fuel. On October 6, 1993, Petitioner delivered diesel fuel to Diamond Sand Company at Mossy Head, Florida. Petitioner returned to the terminal with 510 gallons of diesel fuel in his trailer. Petitioner did not notify the terminal of the left- over fuel. The next day, the tanker trailer containing the diesel fuel was assigned to another driver, David Wood (white), who loaded gasoline into the tank containing the diesel fuel resulting in a mixture of petroleum products. Admittedly, Wood violated Company safety policy by failing to check his trailer for fuel prior to loading it. However, relevant to Petitioner, Respondent's safety policy also required Petitioner to verify that all product had been unloaded from his tanker. A tanker like the one involved here unloads from the bottom of the compartment. Even if the product is not being pumped, gravity causes the product to flow out of the tanker. To determine whether product remains in a tank after unloading, a driver is trained not to open the trailer dome lids, but to open the valve of a tank slightly and to drain the tank's contents into a bucket. If the tank is empty, little or no product will drain into the bucket. If the tank contains product, it will continue to drain into the bucket and the driver will have to close the tank's valve to cut-off the flow. The process is known as the bucket test. If the tank is not empty, the driver is required to contact the terminal to obtain further instructions regarding the disposal of the remaining product. The bucket test is not part of a driver's pre- or post-inspection. The pre-or post-inspection is a term of art which refers to a particular type of DOT required inspection. Petitioner testified that he performed the bucket test, drained the diesel fuel in a bucket until the flow stopped. He gave the fuel to a man in charge of unloading to pour into the storage tank. Petitioner also testified that a man on top of the tanker told him the compartment was empty. Petitioner did not reference this other man in his appeal letter or his FCHR affidavit. Ms. Dinnes did not recall Petitioner telling her about the man on top of the tanker. The safety manual provides that a driver must always call [the terminal] for instructions when a customer cannot take all of the load or does not want all of the load the customer has ordered and owns. Respondent instituted this policy because an extremely hazardous situation is created when petroleum products are stored in a tanker trailer at the terminal without the implementation of appropriate safety precautions. In addition, management needs to be informed about the presence of the product in a tanker trailer, so the next driver using the tanker can be informed to minimize the chance of a mixture. On October 7, 1993, during loading, Mr. Wood discovered that the tank he was loading gasoline into was not empty when the pump cut-off before depositing the amount of gasoline he had entered into the system. He immediately contacted the terminal manager, Ms. Dinnes, to report the mixture. Ms. Dinnes was also contacted by D & H Oil Company and informed the customer did not receive all of the fuel it had ordered. Ms. Dinnes contacted the safety department and informed Mr. Cleyman of the facts and circumstances surrounding the incident. Petitioner failed to notify the terminal that he did not unload 510 gallons of diesel fuel at Mossy Head, Florida. If Petitioner had reported to the terminal that he had leftover product, the terminal manager or dispatcher would have provided instructions to Petitioner for its distribution or recorded its presence in the tanker trailer so that the next driver using the tanker would be informed of its presence thereby preventing a mixture. Mr. Cleyman and Ms. Dinnes concluded that Petitioner violated written company safety policy by failing to notify the terminal that diesel fuel remained in the tanker trailer after his last delivery which created a hazardous situation at the terminal and contributed to the creation of a mixture by the next driver to be given the truck to drive. They also concluded that Mr. Wood violated safety rules by failing to check the tanker trailer to verify it was empty before loading gasoline into it. Mr. Cleyman instructed Ms. Dinnes to assess twelve points against both Petitioner and Mr. Wood in accordance with the safety manual. The contaminated product was sold by Respondent to Davis Oil Company in Dothan, Alabama. Respondent lost an estimated $1,988.56 as a result of the safety violations by Petitioner and Mr. Wood. Importantly, using the same tanker trailer that Petitioner used to transport the diesel fuel, Mr. Wood delivered the product to Davis Oil Company without any malfunction of the tanker trailer's equipment, including its emergency and unloading valves. These were the same valves which would have had to malfunction to cause Petitioner to believe the tanker was empty when he allegedly performed the bucket test at Mossy Head. After Petitioner received a Notice of Termination, Petitioner appealed to Respondent's safety review committee the assessment of points for the Sunshine, Jr. store and the Mossy Head violations. In his appeal letter, Petitioner contended that he did not violate safety policy because he did not "stick the tank before and after" unloading since "it was unsafe for [him] to climb on top of [the trailer] and there are no guard rails." "Sticking the tank" is where a driver inserts a measuring stick into a compartment to see if any product is left or to measure the amount of product remaining. Petitioner further contended that he was directed by Respondent not to open the trailer dome lids because someone had been killed in an explosion by doing so. Irrespective of the issue of climbing on the tanker to check to see if it was empty, the evidence was uncontroverted that the valves involved in unloading the tanker and performing the bucket test do not malfunction intermittently, but continue to malfunction until repaired. If the valves had not been working, the valves would not have been functioning when the mixture was later unloaded by Mr. Wood. The only conclusion is that Respondent either did not perform the bucket test or performed it improperly. Both conditions violate the company's safety policy. The returned product and the resultant mixture were clearly preventable. Pursuant to Respondent's policy, an investigation of the incident based on Petitioner's appeal letter by the safety review committee was initiated. After review of the incident and all contentions made by Petitioner in his appeal letter, the safety review committee upheld the point assessment against Petitioner. It was reasonable for Respondent to rely on the functioning of valves in analyzing the veracity of Petitioner's appeal. Petitioner was discharged on October 8, 1993, for violations of Respondent's safety program. Respondent's safety program specifies that the accumulation of 24 points in one year by an employee results in the dismissal of the employee. In 1993, Petitioner violated the company's safety policies on two separate occasions. The two violations caused Petitioner to accumulate 24 points within one year. The safety policies Petitioner violated were: (1) mixture of petroleum products on April 28, 1993; and (2) failure to notify the terminal of undelivered product left in the tanker trailer he brought back to the terminal after his last delivery which later resulted in a mixture on October 7, 1993. Each violation of the safety program was reported by Nancy Dinnes, Terminal Manager, to Luc Cleyman, Director of the company's safety department. The safety department reviewed the facts of each infraction as given to them by the terminal manager. In each case the infractions were preventable. In each case, the point assessment against Petitioner's driving record was in accordance with the point schedule contained in the driver's safety manual. In each case, the number of assessed points was reasonable. However, Petitioner contends that white drivers were treated differently than black drivers. Much of Petitioner's accusations are based on rumor. For instance, Petitioner contends in his Affidavit that Clayton Vaughn (white) had a major spill at Sunshine Jr. Store No. 214, cleaned up by Dave Garner, that was not reported. Petitioner testified that he had no evidence to support this allegation or first-hand knowledge of this incident. He stated that he learned of it through "driver talk," although he could not remember the name of the driver he had heard it from. Mr. Vaughn, Ms. Dinnes, and Ms. Cleyman each state that no such incident occurred and that Petitioner's claim is not true. Petitioner also contends that in July 1991, Lane Corbin (white)and Tommy Jordan (white) could not pass a random drug test, so Ms. Dinnes told them to purchase a bottle of Murine eye drops to put into the urine specimen bottle. Again Petitioner admits that he has no evidence, only hearsay, to support this allegation. Ms. Dinnes denies Petitioner's allegation. Mr. Cleyman states that the drug testing of urine specimens utilized by Respondent would have detected an adulterated specimen, therefore, Murine eye drops would not have concealed the use of illicit substances by a test subject. In his Affidavit, Petitioner contends that Tommy Jordan was assessed six points instead of 12 points for a mixture. The citation referred to by Petitioner clearly indicates that 12 points were assessed against Mr. Jordan's driving record. In his Affidavit, Petitioner asserts that Mr. Vaughn had a spill at Citgo. Again, Petitioner has no evidence, only hearsay, to support this assertion. Mr. Vaughn, Ms. Dinnes, Mr. Cleyman, and Gail Williams (dispatcher) state that no such incident took place. Petitioner contends in his Affidavit that Mr. Vaughn tried to load 1,500 gallons of gas into a 1,000 gallon tank, which caused a spill. Petitioner admittedly has only hearsay to support this contention. Mr. Vaughn, Ms. Dinnes and Mr. Cleyman state that no such incident occurred. In his Affidavit, Petitioner states that Mr. Vaughn and Dave Oyler (white) received speeding citations and were not assessed points. Petitioner testified that he had no first-hand knowledge of this allegation. Ms. Dinnes and Mr. Cleyman state that they are unaware of any instance where Mr. Vaughn or Mr. Oyler received points for speeding violations. Moreover, each year, Respondent obtains a Division of Motor Vehicle (DMV) report on all drivers and other employees who operate company vehicles. The DMV report does not list infractions. Petitioner also asserts that in November 1992, Tommy Jordan, in violation of company rules, drove through a tunnel in Mobile, Alabama with a placarded trailer. Ms. Dinnes and Mr. Cleyman state that the incident referred to by Petitioner was thoroughly investigated by the safety department and determined to be nonpreventable. The investigation showed that the exit ramp for trucks carrying hazardous materials was not properly marked. As a consequence, Jordan did not have sufficient notice to safely exit the roadway before entering the tunnel. Therefore, the incident was determined to be nonpreventable. Petitioner contends in his Affidavit that Tommy Jordan delivered product to the wrong location which caused a mixture. Petitioner has only hearsay to support this contention. No evidence exists showing that such an incident occurred. Petitioner contends that Mr. Vaughn had a large spill at A.W. Herndon Convenience Store. Petitioner has no first-hand knowledge of this incident. Mr. Vaughn, Mr. Fernando, Mr. Berrios, Ms. Dinnes, and Mr. Cleyman state that a spill occurred; however, the amount spilled was not large, only two gallons. After a thorough investigation of this incident, the safety department determined that the spill was nonpreventable. The investigation showed that the spill was caused by a malfunctioning lock-down fitting, and that the size and severity of the spill was minimized by Mr. Vaughn's quick response. At hearing Petitioner presented evidence of some racial slurs in the workplace. In February, 1993, Petitioner testified that Ms. Dinnes told Tommy Jordan that she had to fire that nigger J.J. (John Jordan) because he is influencing that nigger Sheffield and that nigger McCoy. Again, Petitioner testified that he had no first-hand knowledge of this alleged incident. Petitioner learned of the comment from John Jordan. Ms. Dinnes and Tommy Jordan both state that no such statement was made by Mr. Dinnes. John Jordan testified that he overheard the statement. The statement was raised in John Jordan's charge of racial discrimination to FCHR against Respondent. However, the evidence showed that John Jordan was legitimately discharged for deliberately dumping hazardous material at the terminal. Around December 18, 1992, Tommy Jordan delivered product to Tyndall Air Force Base. A black sergeant had instructed Mr. Jordan to deliver the product differently than had been done before. After the sergeant walked away, Mr. Jordan stated in front of a white airman, "Who does that nigger think he is?" The airman informed the sergeant of Mr. Jordan's comment. Ms. Dinnes received a telephone call from the Air Force sergeant. He informed her of Tommy Jordan's conduct. Ms. Dinnes informed the sergeant that Mr. Jordan would be terminated immediately. The sergeant told Ms. Dinnes that he did not want Mr. Jordan to be discharged, but would be satisfied if he was never assigned to deliver product to the base again. Ms. Dinnes called Florida Rock's main office and believes she spoke with Bob Jackson, then president of Florida Rock. She informed him of the incident and the sergeant's desire. Both took the sergeant's request into consideration when making a decision regarding disciplinary action. Ms. Dinnes confronted Tommy Jordan about his conduct. He admitted he made the statement. She told him that he would be terminated immediately if he ever made such a comment again. Ms. Dinnes also told him that if it were not for the sergeant's request that he not be fired, he would have been discharged. Mr. Jordan did not use another racial slur in the workplace again. Mr. Jordan was not assigned to haul another load to Tyndall Air Force Base. Tommy Jordan was later terminated for accumulating too many points for safety violations. Numerous other minority and non-minority employees employed at the Panama City Terminal during 1991 through 1993 testified that they had never heard Ms. Dinnes or any other of Respondent's manager or supervisor make a derogatory comment based upon race. Mr. Harrison, a black driver, testified that the only derogatory comments relating to race he heard at the terminal from any employee of Respondent were made by Petitioner. Every time Petitioner "got a chance to get close to Harrison" since 1985, Mr. Harrison testified that he called him an "Uncle Tom" and a "bootie kisser" because Harrison refused to get "up in the white folks' face." Mr. Miller a black driver also testified that the only derogatory comments relating to race he heard at the terminal from Respondent's employee were made by Petitioner. Mr. Miller testified that Petitioner called him an "Uncle Tom," a "suck ass," and a "suck butt" because Petitioner said he "liked white people." When Mr. Miller asked Petitioner to stop calling him these names, Petitioner told Mr. Miller that he would "get a gun and shoot [him]." The record clearly indicates that use of racial slurs in the workplace were few and far between. Respondent's policy was to attempt to prohibit such conduct. The company president, Mr. Mabbett, personally investigated Petitioner's claims. In this case, the sporadic racial slurs which occurred are not a sufficient basis to infer an intent to discriminate against Respondent. The terminal manager of Whitaker Oil Company (Whitaker), Jerry Watkins, testified that he barred Petitioner for over two years beginning in late 1990 from hauling loads for Whitaker. Mr. Watkins decided to bar Petitioner after Petitioner said that he could deliver Whitaker loads any time he wanted. Mr. Watkins believed that Petitioner's attitude jeopardized Whitaker's reputation with its customers. Mr. Watkins testified that Whitaker's reputation was its most important asset. He also testified that Petitioner's race had nothing to do with his decision. Three drivers (all white) other than Petitioner also were barred by Mr. Watkins from hauling Whitaker loads during the more than 15 years he has been Whitaker's terminal manager. Only one of these three drivers was employed by Respondent. Pud Parker, a white driver, was barred by Mr. Watkins because he refused to clean his truck. During the time Mr. Parker was barred, Ms. Dinnes did not call Mr. Watkins attempting to have the prohibition lifted as she did for Petitioner. During the time Petitioner was barred, Ms. Dinnes contacted Mr. Watkins repeatedly asking him to allow Petitioner to haul Whitaker loads again. Mr. Watkins refused Ms. Dinnes' request. In defiance of Mr. Watkins' orders, Ms. Dinnes formulated a plan to permit Petitioner to haul Whitaker loads without Mr. Watkins' knowledge. Ms. Dinnes arranged to have Mr. Berrios and other drivers load tanker trailers for Petitioner. Mr. Berrios would go to the Whitaker terminal, load the tanker trailer, and bring it back to the Panama City Terminal where Petitioner would take over the transportation duties. Ms. Dinnes instituted this plan to permit Petitioner to earn a living during a time when business was slow. He had complained to her about not being able to make enough money to support his family. This practice continued until Mr. Watkins discovered that Petitioner was hauling Whitaker loads without his permission. When he found out, Mr. Watkins contacted Ms. Dinnes who admitted to him that she had arranged for Petitioner to haul Whitaker loads clandestinely. He directed Ms. Dinnes that Petitioner was barred from transporting any Whitaker loads until further notice. After approximately two years, Mr. Watkins decided to lift the ban. Petitioner had also been barred from hauling loads from the Chevron terminal. Again, Ms. Dinnes repeatedly attempted to have the prohibition lifted. After approximately two years, Petitioner was permitted to transport Chevron loads. Reports pertaining to the compensation of drivers at Respondent's Panama City Terminal from 1991 through 1996 show no discrimination toward black drivers in the area of compensation or load assignments. The compensation reports show that the drivers receiving the most compensation in 1991 were Petitioner and Michael Davis, both black drivers. For 1992, 1993 and 1994, Mr. Davis was the second most highly compensated driver. For 1995 and 1996, Mr. Davis was the most highly compensated driver. As discussed below with respect to Petitioner's disparate impact claim, an evaluation of driver discharges from 1990 to August 1997, shows no adverse effect on black drivers in terminations for safety violations. During this period, 18.7 percent of the drivers employed by Tank Lines were black and 74.4 percent were white. Of the drivers discharged for safety violations 18.9 percent were black and 77.5 percent were white. The percentage of white drivers terminated for safety violations actually exceeded the percentage of white drivers employed by the company. In comparison, the percentage of black drivers discharged for safety violations was nearly identical to the percentage of black drivers employed by Respondent. The undisputed evidence establishes that Respondent applied its safety policies equally to all drivers regardless of their race. A total of 20 white drivers were identified in the discovery process, where according to the safety manual, they could have received 12 points but received less points for creating or contributing to mixtures. With the exception of Roderick Miller, a black driver, all drivers receiving six points for a mixture. For each white driver that was assessed less than the minimum 12 points for the mixture, an explanation of "extenuating circumstances" was offered by Florida Rock to justify the assessment. The white drivers assessed less than the minimum 12 points for a mixture and the explanation for "extenuating circumstances" that justified the assessment of less points as testified to by Luc Cleyman, the safety director, is as follows: Dan Butow, a white driver at the Panama City terminal, along with James "Pud" Parker received six points on January 10, 1991. The citation issued described the incident as failed to check trailer and loaded on top. The safety department determined that extenuating circumstances existed. The investigation of the incident established that it was caused by a faulty internal valve which failed to open when the handle was pulled. Consequently, the drivers thought that the tanker trailer was empty because when they pulled the handle to open the valve to determine whether the tank was empty, no product came out of the pipe. The bucket test was performed. The tanker trailer used by Parker and Butow had to be repaired before it could be used to transport product again. Ms. Dinnes was directed by the safety department to assess six points against the driving records of Parker and Butow because it was felt the drivers should have recognized the odd feel of the cable when it was pulled and should have known something was wrong. However, it was not clear if the cable felt strange when it was pulled. James Parker, a white driver at the Panama City terminal, received six points. The citation issued described the incident as failed to check trailer and loaded on top. This is the same incident described above. Lane Corbin, a white driver at the Panama City terminal, failed to unload number 3 compartment of supreme gas and loaded 96 gallons of no lead gas on top of it in 1989. Mr. Cleyman advised he had no knowledge of any extenuating circumstances since it was prior to his time as safety director. Archie Trull, a white driver at the Panama City terminal, downgraded a product and blended mid-grade in August, 1991. He was given six points. The "extenuating circumstances" justifying the six points was because it was a blending error constituting driver error, not a mixture. The evidence showed that there is a difference between mixing or blending products to purposefully obtain a certain grade of product and the mixtures involved in this case. There is no category in the safety manual specifically referring to blending errors. The error falls in the general or other category of safety violations. A blending error typically results in the assessment of six points. Daniel Webb, a white driver at the Panama City terminal, received six points for a mixture on March 24, 1990. The "extenuating circumstances" justifying Mr. Webb receiving six points was because this was a training situation. Webb removed the tags which identified the product, the trainee mixed the product, and because there was some comparative negligence with him and the trainee, Roderick Miller (black), only six points were assessed. The incident occurred five days after Miller was hired. Miller was being trained by Webb at the time of the incident. Because Miller was a new driver in training at the time of the mixture, the safety department directed Ms. Dinnes to assess six points against both drivers. William White, a white driver at the Panama City terminal, brought back 595 gallons to the yard and did not completely unload the no-lead product in October, 1990. Six points were assessed because there was no indication of a mixture. Kenneth Albritton, a white driver at another terminal, received zero points for a spill. The original point assessment was voided. The "extenuating circumstances" justifying assessing zero points is unknown. Mr. Cleyman testified that to void points it must be deemed unpreventable. Barry Sanders, a white driver at another terminal, had a spill. The cause of the spill was an equipment malfunction because the drop pipe coupling was egg-shaped and did not fit the hose. Ricky Brannen, a white driver at another terminal, received six points for a mixture where he brought product back on the trailer and then loaded other product on top (no- lead on top of premium). Brannen four months earlier had a spill which was deemed preventable in which he got 12 points. If Brannen would have received 12 points for the mixture he would have been terminated. Mr. Cleyman was on vacation and did not have sufficient knowledge regarding the assessment. Rosemary Crossman, a white driver at another terminal, had a spill which was voided. The "extenuating circumstances" justifying zero points was because she was not properly trained and therefore, not able to "pump off". Lou Dostal, a white driver at the Atlanta terminal, was given 12 points for a spill in 1991. Ultimately, the 12 points were reduced to six points by Cleyman. However, Mr. Cleyman did not know the reasons for the reduction. James Garner, a white driver at the Ocoee terminal, had a mixture and received six points in 1991. The mixture resulted in an upgrade of fuel to a higher octane. There is no rationale set forth in the file. Cleyman believes that he spoke with the terminal manager or had some reason to give six points instead of 12. However, he could not recall the reason for the point assessment. Dennis Lee Hall, a white driver at the Albany terminal received six points for a mixture around July 1993. The six points was [sic] issued for failing to follow procedure which is less harsh than mixture. The point assessment was based on a conversation between Cleyman and the terminal manager. The terminal manager felt that no points should be assessed. The mixture occurred at a tank farm with confusing tanks and pipes. The driver simply hooked to the pipe he thought correct. However, he had traced the wrong connection. Ronnie Harrison, a white driver at the Tampa terminal, who initially received 12 points for a spill in November 1995. In January of 1996, Cleyman removed the points. Steve Cassell, regional manager, requested Cleyman take action on behalf of the driver based on a deceased terminal manager's alleged agreement. Before he died, Fred Tatum, the terminal manager, gave Mr. Harrison three days off, when no pay can be earned, and 12 points, but according to the driver, he intended that he would still get his safety bonus. In trying to honor the deceased terminal manager's alleged arrangements, Cleyman, two months after the incident, removed the 12 points and gave Harrison his safety bonus. Additionally, the tanks were not properly marked and the delivery was made to a commercial private account which controlled the delivery. Robert Holland, a white driver at the Tampa terminal, received three days off and six points for failure to unload all of the product at the site. No mixture was involved. Cleyman did not recall the incident in detail. Ray E. Kersey, a white driver at the Tampa terminal, received six points for a spill in March 1990. Cleyman cannot recall the reason for the six-point assessment because it was a difficult drop process at Respondent's terminal and Mr. Kersey could have received zero points. If Cleyman did not believe Kersey, he could have given him 12 points. Cleyman did not totally believe the narrative written by the driver accurately reflected what happened, but gave him the benefit of the doubt. Michael Koester, a white driver at the Atlanta terminal, received six points for a mixture in 1991. Chevron assumed responsibility for the occurrence because the tag and identification cover did not match. The tag was under muddy water and could not be seen. Mr. Mabbett and Cleyman deemed it unpreventable but still assessed six points. Kee Wayne Laurendine, a white driver at the Jacksonville terminal, received six points for a mixture in 1994. He dropped premium into no-lead fuel. Also, he cross-dropped a kerosene tank with diesel and received 12 points. On July 4th, thousands of people who had been watching fireworks, began to converge on the gas station where the driver was loading product. The people were flipping cigarettes, shooting off fireworks and sparklers, etc. Mr. Laurendine became excited, confused, tense and scared that he was going to be blown up. He made an error. Robert Remillard, a white driver at the Atlanta terminal, received six points for a mixture. Luc Cleyman stated that the "extenuating circumstances" were that unloading paint thinner in a tank containing only alcohol residue was not a mixture. Remillard received six points because he was supposed to check and see if the tank was clean and he failed to do so. He had been told the tank was clean. On August 15, 1990, Mr. Remillard wrote a narrative describing spilling product on the grass. Luc Cleyman offered no "extenuating circumstances". Elvin Roe, a white driver at the Ocoee terminal, received six points for a mixture in September 1990. Mr. Higgins, a vice president, was sent a memorandum to review the incident on September 23, 1990, for Mr. Roe. Mr. Bob Jackson and Mr Higgins agreed Roe should get six points rather than 12 points and Cleyman issued six points. An alternative disciplinary approach was proposed which included suspension, probation, and forfeiture of a yearly bonus. David Trimmel, a white driver at the Tampa terminal, received six points for failure to unload. There was no mixture. Trimmel also received only 12 points for a spill that he did not report, clean up, notify DEP or the fire department. Mr. Trimmel quit before he could be terminated by the terminal manager. After reviewing all of the above records, the record shows that each case turned on facts different from those of Mr. McCoy. Some were treated more harshly than hindsight would have warranted. Some were not. Insufficient facts were presented to show that the facts and circumstances were similar to those of Petitioner. No expert testimony was offered as to the validity of the sampling of employees or that these employees constituted a statistically significant group. Indeed if the exercise of judgment by management is the objectionable policy of Petitioner, then a larger sample constituting the entire safety program would be appropriate since the exercise of judgment is present throughout the company's disciplinary process. The only evidence presented in this regard was the statistical evidence presented by Respondent. That evidence did not demonstrate an adverse impact or treatment of Petitioner or other minorities. Petitioner's statistical evidence was not shown to be reliable or sufficiently valid. Therefore, the sample referenced above cannot form the basis for an inference of discriminatory intent or disparate impact. At the time of his termination on October 8, 1993, McCoy had earned $26,291.99 for approximately 40 weeks of work in 1993. Therefore, McCoy's annualized earnings in 1993 would have been approximately $34,000. In 1992, McCoy earned $30,254.28 from Florida Rock. In 1991, McCoy earned $26,549.38 from Florida Rock. Based on these earnings, McCoy's gross wages from Florida Rock increased in 1992 by 14 percent and in 1993 by 12.3 percent. Therefore, based on McCoy's increase from 1991-1993 and the exemplary models above, it is more than reasonable to assume that McCoy's earnings as a driver at Florida Rock would have continued to increase at a minimum of five percent per year. Florida Rock also provides significant fringe benefits to its employees that include health benefits, life, and accidental death insurance, dental insurance, profit sharing, a 401K deferred earning plan, disability benefits, holiday, and vacation days, a flexible spending account plan, and payroll taxes. According to Florida Rock, these employee benefits represent an "additional 40 percent of compensation" to Florida Rock's employees. Florida Rock's benefit plan is significantly better than the typical employer. At the time of his termination, Petitioner was 50 years of age. After Petitioner was terminated, he could not find comparable employment and filed for and received unemployment benefits. The State of Florida, Department of Labor, required Petitioner to make a "thorough and continued effort to obtain work" in order to receive unemployment compensation benefits. The Petitioner's family goal regarding his re- employment was for him to get a job in the Panama City area. Petitioner continued to look for employment with out- of-town employers that hired in the Panama City area so he would not be away from his family at night. He either was not hired by these employers, or in order to be considered for the positions, he was told he would have to relocate out of state. Petitioner's educational background was limited to high school and he had never received any specific education or training on job searches or job placement. Petitioner attempted to get retrained at Haney Vocational Technical School; however, the company, JTPA, went out of business. Despite not having the background or this knowledge, McCoy attended job fairs and sought training in the communications field from a friend (Robert Alford) who had been in the business for 18 years. Since Petitioner could not locate a truck-driving job similar to or of a like nature with his Florida Rock position, he decided after approximately five to six months to start his own lawn care and telephone communications business. Petitioner reasonably believed that both businesses could be very successful in the Panama City area. Because Petitioner had limited income after being terminated, he used his pension money from his Florida Rock 401K plan both for living expenses and for capital to start his businesses. Petitioner withdrew $102,556 of his 401K savings during this time. Petitioner's telephone communications business was very successful in the beginning. His first bid was accepted and a lucrative contract was obtained to install the phone system for a new hotel in Panama City. At the same time, while the communications business was just starting Petitioner continued to operate a lawn care business after having observed the financial success of others, including family members. Margie McCoy took care of all of the bills and invoices associated with the businesses, as well as provided the information to the accountant for the preparation of the income tax returns. At times, Petitioner's lawn care business was seasonal, but for each season, McCoy would provide different types of services for his client as opposed to not working at all. There was at lease one six-month period in which McCoy could not work because he had a stroke on March 21, 1995. There was no credible evidence that Petitioner's stroke or high blood pressure was caused by his termination from Florida Rock. Petitioner's high blood pressure did contribute to his stroke. However, Petitioner demonstrated symptoms of elevated blood pressure prior to his discharge from Florida Rock. Notwithstanding his health restrictions, Petitioner continued to try to make his lawn care and telephone businesses successful. Petitioner would work in the sun trying to make the lawn care business successful in violation of his doctor's orders. Petitioner's earnings/losses from his communications and lawn care businesses are as follows: 1994 - $878; 1995 - $6,722; 1996 - $7,055; 1997 - $739; 1998 - $1,689. Petitioner currently works for the Bay County School Board driving a school bus. He was hired in 1998. He continues to work his lawn care and communications businesses. He took a night class to become certified as a bus driver, while at the same time operating his lawn care business during the day. The evidence did not show that Petitioner is currently physically able to work for Florida Rock because his blood pressure was not under control as late as January 2000. Therefore reinstatement would not be appropriate. Petitioner earned $7,086 as a school bus driver in 1998, and $12,554.89 in 1999. Based on the circumstances presented to Petitioner after he was terminated from Florida Rock in October 1993, Petitioner used reasonable efforts to seek employment of a like nature compared to his driver's position at Florida Rock. Also, he used reasonable efforts to earn income by starting his own businesses. Following his stroke, McCoy continued to use reasonable efforts to obtain a bus driver position with the Bay County School Board that provided insurance benefits, while at the same time, continuing to operate his lawn care business. There is no indication that Petitioner failed to use reasonable efforts to earn income following his termination from Florida Rock. Moreover, Petitioner's pension/401K savings of $102,556 that was lost and used to start the businesses and for living expenses (as well as additional amounts that would have been contributed to the 401K plan), would have continued to grow and compound during this period. Petitioner's damages from lost earnings and benefits, lost earnings on his 401K plan (assuming 10 percent simple interest), and total back pay damages less mitigated earning from October 1993 to the present is as follows: Date Lost Wages Lost Benefits (40%) Lost Earnings To 401K2 Less Mitigated Earnings Total Loss Oct. 93- Dec 93 $8,000 $3,200 $10,255 $11,200 1994 $35,700 $14,280 $10,255 <$4,250> (unemploy -ment) $55,985 1995 $37,485 $14,994 $10,255 0 $62,734 1996 $39,359 $15,743 $10,255 0 $65,357 1997 $41,327 $16,530 $10,255 <$739> $67,373 1998 $43,393 $17,357 $10,255 <$7,086> $63,919 1999 $45,562 $18,224 $10,255 <$12,554> $61,487 Jan. 00- Sept. 00 $35,880 $14,352 $7,691 <$9,415> $48,508 401K Withdrawal $102,556 Total Back Pay Damages $539,119 However, Petitioner's damages would have terminated upon his stroke in March 1995. At that time, Petitioner was no longer qualified for employment with Respondent due to his uncontrolled high blood pressure. However, Petitioner would have received $5500.00 in disability benefits because of his stroke.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of committing an unlawful employment practice and dismissing the Petition For Relief. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 9th day of November, 2000. COPIES FURNISHED: Davisson F. Dunlap, Jr., Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Harriett W. Williams Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Williams, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The School Board of Pasco County ("Respondent") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). At all times material to this case, the Respondent has had a nondiscrimination policy and a policy prohibiting sexual harassment in effect. The policies are provided to all employees, including the Petitioner, upon hiring, and are posted throughout the workplace. Denise E. Hoedt ("Petitioner") at all times material to this case was a bus driver employed by the Respondent. As of the date of the hearing, the Petitioner was on worker's compensation leave. There is no evidence that the worker's compensation leave is related to the allegations at issue in this case. When the Petitioner was initially employed by the Respondent she was assigned to a regular bus route and was stationed in the "Northwest Garage" unit of the Respondent's transportation system. After having been employed for a sufficient period of time, she was provided with a contractual right to choose her route. She chose to transport exceptional education (ESE) students. As an ESE driver, the Petitioner's immediate supervisor was Jacqueline Dennis. Ms. Dennis did not work in the same garage from which the Petitioner was based. The Petitioner has been involved in a continuing series of grievances against Mr. Valentine Gallas, a "Route Specialist" for the Respondent. The grievances, filed prior to the complaint to the Florida Commission on Human Relations at issue in this proceeding, have been directed towards her discontent with work assigned to her by Mr. Gallas. Although Mr. Gallas was not the Petitioner's immediate supervisor, as a Route Specialist located in the Northwest Garage, he had supervisory authority over the Petitioner, as did Joanne Snodgrass, another Route Specialist in the same facility. One of the prior grievances was directed towards his request that she assume responsibility for opening a large metal gate at the entrance of the bus storage compound. The complaint was resolved by an agreement that she would not be asked to open the gate. Upon being requested by a different official to drive a later route and take responsibility to close the gate, the Petitioner complied with the request. Although she did not continue to drive the later route, there is no evidence that her decision was related to the request regarding gate closure. Another grievance centered on Mr. Gallas' directive that she drive a second bus run after she had completed her initial run. Mr. Gallas apparently did not provide the Petitioner with an opportunity to use the rest room prior to the second run. The Petitioner filed a grievance about the matter which was resolved by an agreement that, prior to being asked to take an additional route, she would be provided with a rest room break. The Petitioner asserted that because Mr. Gallas assigned her to a bus with a poor driver's seat, her back was injured. There is no credible evidence to establish that the seat caused or contributed to the claimed back injury. The Petitioner suggested that the clock in the bus driver's lounge was tampered with and resulted in her being reprimanded for tardiness. There is no credible evidence that the clock was intentionally tampered with to cause the Petitioner to be reprimanded. There is no evidence that any of the prior disputes between the Petitioner and Mr. Gallas were related to the Petitioner's gender or national origin, or were a form of sexual harassment of the Petitioner. When the Petitioner was driving a regular bus route, Mr. Gallas was responsible for her work assignments. When she began to drive an ESE route, she was no longer directly responsible to Mr. Gallas. In January 1993, the Petitioner, via a union representative, contacted school board officials and voiced her dissatisfaction with Mr. Gallas' alleged behavior. Late in January 1993, the Petitioner, accompanied by the union representative, met in an interview with the school board's personnel investigator. At the interview, the Petitioner stated that she believed she had been discriminated against on account of her gender and ethnic origin, and that she had been subjected to sexual harassment by Mr. Gallas. During the interview, the investigator attempted to obtain allegations of specific conduct, but other than as stated herein, the Petitioner was unable to offer such allegations. Although during the interview, the Petitioner alleged that Mr. Gallas had made derogatory comments regarding her ethnic origin and her weight, the only specific incident of which the Petitioner spoke was Mr. Gallas' alleged remark to her, "Oh, a Cuban." She offered no context for the remark. There was no specific remark regarding weight disclosed during the interview. The Petitioner also alleged that subsequent to Mr. Gallas' purchase of beverages for a group of bus drivers, he had repeatedly said she "owed him one" in a manner which the Petitioner interpreted as sexual. The remark continued until such time as the Petitioner purchased a beverage for Mr. Gallas. Further, the Petitioner alleged that in November 1992, Mr. Gallas came into the bus drivers' lounge and handed her an offensive written statement regarding intercourse which she interpreted as a request for sex. The investigator inquired as to whether Mr. Gallas had touched the Petitioner. She replied he had not. There was no mention of any other alleged inappropriate activity by Mr. Gallas towards the Petitioner. At the conclusion of the interview, the investigator expressed her concern about the serious nature of the charges. She assured the Petitioner that there would be no retaliation for the report of the complaints. She noted that the findings of the investigation would be confidential and requested that the Petitioner refrain from discussing the allegations pending the investigation. The investigator began her inquiry the day after meeting with the Petitioner. A meeting was scheduled with Mr. Gallas and with other persons who were aware of Mr. Gallas and the operation of the Northwest Garage. As to the investigator's request that the Respondent refrain from discussing the matter, the Petitioner failed to comply with this request. The matter became fodder for discussion in the workplace. A petition was initiated by several employees on Mr. Gallas' behalf. The Petitioner attempted to initiate her own petition drive without success. The matter was viewed by some coworkers as an attempt by the Petitioner to have Mr. Gallas' employment terminated. The investigator for the Respondent viewed the Petitioner's allegations with skepticism due to the "vagueness" of the specifics. The failure of the Petitioner to comply with the request to keep the matter confidential during the investigation did little to alleviate the investigator's initial concerns about the Petitioner's credibility. Despite the continuing controversy, the school board attempted to complete its investigation of the matters about which the Petitioner had complained. In an interview with the investigator, Mr. Gallas denied the charges. He stated that the remark regarding her origin occurred in the context of a discussion between the Petitioner and another driver overheard by Mr. Gallas, at which time the remark was made. He denied making any reference to her weight. Although acknowledging that he had seen the "intercourse" card in the garage, he denied having handed it to her. He denied any sexual intent in the "owe me one" remark. Other interviews were conducted with other persons who are knowledgeable about the operations of the Northwest Garage and Mr. Gallas' employment there. The investigator was unable to substantiate the allegations. Based on a review of the Petitioner's interview and allegations, Mr. Gallas' denial, and the inability to find further substantiation for the complaints, the investigator determined that there was no reasonable cause to believe that the complaints were credible. After the investigation and determination were completed, there was a time delay in providing notification of the determination to the Petitioner. The evidence establishes that the delay was not an attempt to deprive the Petitioner of any contractual or legal right but was due to nothing more than clerical error on the part of the personnel investigator. There is no evidence that there was any harm to the Petitioner related to the delay. In May 1993, the Petitioner filed the complaint with the Florida Commission on Human Relations (FCHR) which is at issue in this proceeding. As identified in the FCHR complaint, the Petitioner's allegations are addressed as follows: The November 1992 "intercourse" card incident-- The Petitioner asserts that in November 1992, as she was seated with two other bus drivers in the driver's lounge, Mr. Gallas entered the lounge, walked to the table where the Petitioner and her coworkers sat, and handed a card titled "intercourse" to the Petitioner. The card was an offensive attempt at humor and included a sexual invitation. Of the two coworkers at the table, only one saw the card. The Petitioner refused to permit the other coworker to see the card. All of the women testified at the hearing. Although the Respondent presented the investigator's recollection of Mr. Gallas' denial of the incident, Mr. Gallas was not called by either party to testify at the hearing. The testimony of the two drivers who were at the table when the incident occurred and who testified at the hearing substantiates the Petitioner's allegation. There is no credible evidence that prior to her January 1993 complaint about the incident, the Petitioner discussed the matter with any other person. The evidence fails to establish that Mr. Gallas' behavior regarding the "intercourse" card incident, although offensive and inappropriate, caused the Petitioner difficulty in performing her job duties or any other harm or injury. Offensive touching of the Petitioner by Mr. Gallas-- The Petitioner asserts that Mr. Gallas occasionally would stand too close to her and that on one occasion, he brushed against her breasts in passing her. There is no evidence that, prior to the filing of the FCHR complaint, the Petitioner had ever complained about unwarranted or offensive touching by Mr. Gallas. Upon direct inquiry by the school board's personnel investigator, the Petitioner denied that she had been touched by Mr. Gallas. The assertion is not supported by credible evidence. Mr. Gallas' sexual requests of the Petitioner-- There is no credible evidence that Mr. Gallas made any verbal sexual requests of the Petitioner. The only incident which may be viewed as a sexual invitation relates to the "intercourse" card addressed previously in this Recommended Order. The Petitioner "owed" Mr. Gallas-- The evidence establishes that at a luncheon attended by coworkers, Mr. Gallas purchased beverages for the group and made a statement to the effect that the recipients "owed him one." Mr. Gallas would occasionally repeat his "you owe me one" statement to the Petitioner. There is no evidence that the statement was made in a sexual manner or that such was intended by Mr. Gallas. Eventually, the Petitioner purchased a beverage for Mr. Gallas, stating "now I don't owe you one." After being bought a drink, Mr. Gallas no longer made the remark. Verbal slurs about the Petitioner's national origin-- The Petitioner is of Mexican, Spanish and Cuban origin. The Petitioner asserts that on one occasion, she became embroiled in an argument with Mr. Gallas during which he remarked, "Oh, You're nothing but a Cuban." There is no other evidence to support her assertion. The evidence is insufficient to establish that Mr. Gallas made such remarks to other employees or that such conversation was typical of him. The assertion is not credible. Terms and conditions of her employment-- The Petitioner asserts that the "terms and conditions' of her employment were different from other bus drivers with responsibilities similar to hers. The evidence fails to support the assertion. Drivers transporting ESE students generally have fewer students to transport than drivers of regular routes. It is possible that an ESE driver may transport only one or two children. ESE drivers often complete their routes before drivers of regular routes. Because the Petitioner was responsible for transportation of ESE students, her route was often completed earlier than other bus drivers. ESE drivers who have completed their routes may "stay on the clock" in which case they may be asked to provide assistance in clerical tasks or to complete other bus routes. In the alternative, drivers may "punch out" and leave. Additional work is assigned to drivers by the Route Specialist in the garage from which the drivers are based. Mr. Gallas was the Route Specialist in the garage from which the Petitioner was based. The Petitioner frequently remained on the clock and was accordingly assigned additional work to do. There is no evidence that any drivers who remained "on the clock" were treated any differently that was the Petitioner. On one afternoon, the Petitioner, suffering from back pain, returned from her route and laid down in her bus. Mr. Gallas came onto the vehicle and told her that she needed to be working. He suggested that she could be made to sweep the bus compound if she did not find other duties to complete. The evidence fails to establish that the Petitioner, who was on the payroll at the time she was resting in her bus, informed Mr. Gallas that she was not feeling well. The evidence fails to establish that Mr. Gallas' actions upon discovering the Petitioner at rest in her bus were related to her gender, national origin, or were a form of sexual harassment. There is no evidence that other drivers were permitted, while on duty, to rest in their busses. As previously addressed, on one occasion, Mr. Gallas directed the Petitioner, immediately upon her return from her normal bus run, to perform additional transportation duties. Mr. Gallas did not provide the Petitioner with an opportunity to use the rest room before beginning her second run. Subsequent to her complaint to appropriate authorities, Mr. Gallas was directed to permit the Petitioner to use the rest room before assigning additional responsibilities to her. Although Mr. Gallas' lack of concern about the Petitioner's personal needs was inconsiderate, the evidence fails to establish that the incident was related to gender, national origin, or were a form of sexual harassment. The Petitioner also asserts that other drivers or their spouses are permitted to bring personal vehicles into the bus compound and that she was not. The evidence fails to establish that other drivers or their spouses are routinely permitted to bring personal vehicles into the compound. The Petitioner complained that during a heavy storm one day, her husband came into the compound to pick her up and was asked to take his vehicle back outside the compound. On that day, Mr. Gallas offered to walk the Petitioner with an umbrella to her car but she declined. The Respondent's inquiry into the January 1993 grievance-- The Petitioner asserts that the school board's inquiry into her January 1993 grievance was incomplete and that the determination that the grievance was unfounded was inappropriate. The evidence fails to support the assertion. The greater weight of the evidence establishes that the Petitioner's complaints, as they were communicated to the school board, were as fully investigated as was possible. The Petitioner's complaints to the Board did not include allegations related to unwarranted touching, according such allegations were not investigated. Further, the investigation was hampered by the spread of rumor and innuendo throughout the workplace regarding the Petitioner's sexual harassment allegations. Although the evidence is not entirely clear as to where responsibility lies for the generation of the rumor and internal bickering, school board personnel involved in the investigation specifically directed the Petitioner to refrain from discussing the allegations pending the board's investigation. As previously stated, she failed to comply with this request. Coworkers of the Petitioner were also involved in discussion about the pending investigation. At that point, the workplace appears to have become divided into factions and the board's investigation was compromised. The evidence establishes that the board's investigation of the Petitioner's grievance was conducted appropriately and that persons with direct knowledge related to the allegations (including Mr. Gallas who was inexplicably not called by either party to testify at the hearing) were contacted and interviewed. Although the investigation became compromised and was completed prematurely, there is no evidence that based on the information obtained by board personnel, the board's determination that the grievance was unfounded was outside the authority of the board or unsupported by the information which the board had obtained The Petitioner seeks to be "reimbursed for all the pain and suffering I have endured...." The evidence fails to establish that such an award is appropriate. The Petitioner offered no evidence related to "pain and suffering" or which would establish that such injury, if present, is related to employment conditions. The Petitioner also seeks to be reimbursed "for any and all money which was used to seek legal consultation." There is no evidence that the Petitioner, who has represented herself throughout this proceeding, has incurred any expenses related to legal consultation regarding this complaint; therefore such an award is not appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed in this case. DONE and RECOMMENDED this 9th of June, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6652 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by the greater weight of credible and persuasive evidence. Proposed finding of fact paragraph six continues for approximately seven pages and consists largely of recitation of conflicting testimony. The testimony has been reconciled as indicated in this Recommended Order. The proposed finding is rejected as subordinate, unnecessary, immaterial and not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 8-9. Rejected, subordinate. 10-16. Rejected, unnecessary. This unnumbered proposed finding consists of "examples of inappropriate sexual behavior" by Mr. Gallas and is treated as follows: Rejected as not supported by the greater weight of credible and persuasive testimony: a. Rejected as irrelevant: c, b, e. Rejected as immaterial: d, f, g, h. This proposed finding consists of "examples of inappropriate sexual behavior involving Mr. Valentine Gallas and Ms. Denise Hoedt" and is treated as follows: Rejected, there is no credible evidence that the offer of an umbrella was "inappropriate sexual behavior b, k. Rejected, immaterial l, m, n, o. Accepted as modified. Remainder is rejected as not supported by the greater weight of credible and persuasive evidence. Rejected as not supported by greater weight of credible and persuasive evidence: a, g. Rejected, subordinate: d, h, i. Rejected, irrelevant: f. Rejected, not supported by the greater weight of credible and persuasive evidence. There is no credible evidence that the Petitioner or her husband have been subjected to restrictions regarding personal cars within the bus compound which are not generally applicable to all drivers, except when specific circumstances require otherwise. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to Pyles' attendance at meeting, unnecessary. Rejected as to note taking by the investigator, unnecessary. 12-13. Rejected, unnecessary. 16-18. Rejected, subordinate. 23-33. Rejected, subordinate, unnecessary. 34. Rejected as to ulterior motives of Petitioner, unnecessary. COPIES FURNISHED: Thomas E. Weightman, Superintendent Pasco County School System 7227 Land O' Lakes Blvd. Land O' Lakes, Florida 34639-2805 Denise E. Hoedt 11605 U. S. Highway 41 Spring Hill, Florida 34610 Mark Graves, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' Joint Pre-Hearing Stipulation, the following findings of fact are made: Petitioner was born on March 31, 1936, in Trinidad- Tobago. He migrated to the United States in 1974. In or around May 1993, when he was 57 years old, Petitioner applied for a position as a school bus driver with Respondent and was subsequently hired. Respondent is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, and for otherwise providing public instruction and related services, including transportation services, to school-aged children in the county. Respondent provides transportation services through its Transportation Department. Jerry Klein has headed the Transportation Department (as its Administrative Director) since 1993. The Transportation Department operates eight transportation centers throughout the county. Assigned to these eight transportation centers are a total of approximately 1,530 school bus drivers, who range in age from 22 to 77, with most being over 40. The current job description for the position of school bus driver has been in effect since March 9, 1999. It provides that school bus drivers must meet the following "physical requirements" and "minimum qualifications requirements": PHYSICAL REQUIREMENTS This is light work which requires the following physical activities: sitting, standing, walking, climbing, twisting, reaching, grasping, talking, hearing and visual acuity. Heavy lifting, pushing, and pulling may occasionally be required. Work is performed indoors and outdoors and worker is subject to noise, heat, fumes and vibration. MINIMUM QUALIFICATIONS REQUIREMENTS Must hold a valid Commercial Driver's License, have a minimum of five (5) years licensed driving experience, and have an excellent driving record. Must be able to pass the examinations and tests required by the State of Florida to obtain a Class B Commercial Driver's License with a Passenger Transport Endorsement, without air brake restriction. Must have an acceptable background check. Must be able to pass a prescribed reflex test, physical examination, and drug test. Must be able to deal with stressful situations on a frequent basis. Must have completed eighth grade and have a demonstrated ability to read, write, and understand written instructions in English. High school diploma or GED preferred. Must be able to pass the Basic School Bus Training Course given by Miami-Dade County Public Schools Department of Transportation in accordance with Rule 6A- 3.0141 of the State of Florida Board of Education.[2] Good knowledge of county geography. In 1993, in response to "several media reports" that some of its school bus drivers "were driving with suspended licenses and [had] other types of problems with their driving record[s]," Respondent developed and reduced to writing criteria to be used to screen the driving records of applicants for school bus driver positions (Screening Criteria), criteria which, in all material respects, it still uses today. The document in which these Screening Criteria are set forth is entitled, "Screening of Driving Records for Prospective School Bus Drivers for M-DCPS and Private Company Drivers," and it reads, in pertinent part, as follows: * * * Each individual's transcript of Driver Record will be screened in accordance with the guidelines and criteria established by this document. The entire driving record will be checked for purposes of determining an individual's acceptability or unacceptability to drive a school bus for M-DCPS. The screening process will be conducted prior to employment for M-DCPS drivers and annually as part of the annual re-certification for all drivers operating under contract to M-DCPS. Points will be assigned for each entry on the Transcript of Driver Record in accordance with the Appendix attached to this document, and Paragraph 2 above. Individuals will not be approved to drive a school bus for M-DCPS if they have: More than three (3) district assigned points during the past year More than six (6) points during the past three (3) years More than nine (9) points during the past five (5) years or More than twenty five (25) district assigned points total, on the entire record. * * * 6. The Administrative Director, Department of Transportation, or his designee, may make exception to the guidelines above, as circumstances warrant. Drivers who are disqualified under the above guidelines may further appeal the decision to the Chief Business Officer. * * * APPENDIX DRIVING VIOLATION POINTS ASSESSED BY DISTRICT VIOLATION POINTS SPEEDING UP TO 14 MPH OVER POSTED SPEED LIMIT 3 15 MPH OR MORE, OVER POSTED SPEED LIMIT 4 IN A SCHOOL ZONE 3 DRIVING TOO FAST FOR CONDITIONS 3 * * * FAILING TO COMPLY WITH STOP SIGN 3 FAILING TO COMPLY WITH TRAFFIC INSTRUCTION/DEVICE 3 * * * IMPROPER TURNING 3 * * * SEAT BELT VIOLATION . . . . 1 CARELESS OR IMPROPER DRIVING 3 * * * 22. AT-FAULT ACCIDENT 2 * * * Note: The district assesses points under this plan for all entries, regardless of conviction status or state disposition. Although Mr. Klein, as the Transportation Department's Administrative Director, has had the authority to "make exception[s]" to these Screening Criteria, he has never done so. Petitioner worked as an hourly school bus driver from June 10, 1993, until January 1994, when he became a full-time school bus driver, a position he held for approximately seven and a half years.3 During his employment as a school bus driver with Respondent, Petitioner was involved in several vehicular accidents while on duty in his school bus. After one such accident, which occurred on August 9, 1999, Petitioner was suspended without pay by Respondent for failing to report the accident.4 The suspension began February 10, 2000, and ended March 13, 2000. Petitioner's most recent accident as a school bus driver occurred March 26, 2001. Because the accident was deemed to have been "preventable," Petitioner was directed to complete retraining before resuming his school bus driver duties. Petitioner began his retraining on May 16, 2001. He was unable to successfully complete the retraining, although given adequate time and a fair opportunity to do so. On June 5, 2001, after Petitioner had had eight days of retraining5 (one in the classroom and seven on the road), Richard Rothberg, a Coordinator II for Operations and Training with Respondent, advised Petitioner that he "wasn't meeting the qualifications" to remain a school bus driver and asked him if he "would be willing to accept a demotion to a bus aide position so that he could retain his employment with [Respondent]." Mr. Rothberg told Petitioner that if he rejected the offer of a demotion, Petitioner's "case would be referred to the OPS [Office of Professional Standards]" and "he could be terminated." Petitioner's age played no role whatsoever in Mr. Rothberg's decision to end Petitioner's retraining and give him the choice to resign from his position as a school bus driver and take a bus aide position or face the possible termination of his employment with Respondent. Petitioner opted to resign from his school bus driver position and accept a position as a bus aide rather than risk not having any job with Respondent. In his letter of resignation, Petitioner wrote that he was resigning because he had "fail[ed] driver retraining." Respondent accepted Petitioner's resignation and appointed him to a bus aide position, effective June 15, 2001, as Petitioner had requested in his letter of resignation, a position in which he has remained. In or around May 2004, Petitioner, through a union representative, John Nochi, contacted Mr. Rothberg's successor, Chris Dowda, to express Petitioner's interest in becoming a school bus driver again. Mr. Nochi, on Petitioner's behalf, asked Mr. Dowda "to check [Petitioner's] driving record to see if he would be qualified to be a school bus driver." On May 14, 2004, Mr. Dowda obtained a print out of Petitioner's driving record (as maintained by the Florida Department of Highway Safety and Motor Vehicles) and "screened it." Applying the Screening Criteria, Mr. Dowda determined, correctly, that Petitioner had accumulated a total of more than 25 district-assigned points over the period of his licensure and that he therefore was not qualified to be a school bus driver. Mr. Dowda thereafter telephoned Mr. Nochi and "told him what the results were" of the screening. Mr. Dowda had "numerous [follow-up telephone] conversations" with Mr. Nochi, who had "a lot of questions" concerning the Screening Criteria. During one of these telephone conversations, which took place sometime prior to the end of 2004, Mr. Dowda, in attempting to explain why the Screening Criteria were developed, posited the following: If there [are] bus driver[s] with a lot of citations on their record and they go out and they get into an accident and there are students injured on the bus and . . . the media gets a hold of their driving record we will see on the news, the media holding [it] up and say[ing], "Look who's driving for ou[r] district right now." Unbeknownst to Mr. Dowda, Petitioner was present in the same room as Mr. Nochi and listening on a speakerphone to what Mr. Dowda was saying to Mr. Nochi. Mr. Nochi also contacted Mr. Klein and requested him to "review the driving record of [Petitioner] and see whether it would be acceptable to bring [Petitioner] back as a school bus driver." After conducting the requested review and determining that Petitioner had "a terrible driving record with more than 25 points assessed based on a long history of driving infractions," Mr. Klein informed Mr. Nochi that he "was not prepared to bring [Petitioner] back as a school bus driver because [Petitioner] didn't meet the minimum requirements of the [S]creening [C]riteria to become a school bus driver," adding that these requirements were not "waive[d] . . . for anybody."6 Effective 2005, all school bus drivers in the state needed to have (as they still do today) a school bus driver endorsement on their commercial driver's license. That year (2005), Petitioner went to Northwestern High School to take a written test, administered by Respondent, to obtain such an endorsement, but was told that he was not eligible to, and therefore could not, take the test. Petitioner subsequently took the test at the Department of Highway Safety and Motor Vehicles driver's license office in Pembroke Pines and received a passing score. On August 23, 2005, he was issued a commercial driver's license with a school bus driver endorsement. Petitioner subsequently went to Mr. Klein and showed him the newly issued license. Mr. Klein responded to being shown the license by repeating what he had told Mr. Nochi concerning Petitioner's having "too many points on his driving record" to be qualified under the Screening Criteria to become a school bus driver with Respondent. Although he has made inquiries about the possibility of his regaining a school bus driver position with Respondent, Petitioner has not submitted an official application for such a position at any time following his demotion. Under the hiring system Respondent has developed, the filing of an application is a prerequisite to becoming a school bus driver. On March 27, 2006, following his meeting with Mr. Klein, Petitioner filed the employment discrimination charge against Respondent which is the subject of the instant proceeding. The "particulars" of the charge were described by Petitioner as follows: I believe that I was discriminated against because of my age, 69. Chris Dadow [sic] made a derogatory comment about look who's driving our school buses. I was instructed to go and get a new license, and I complied. Mr. Chris Dadow [sic] refused to give me the driving test so I [could] become a School Bus Driver. I was ultimately denied the opportunity for employment. In fact, it was Petitioner's driving record, not his age, that prompted Mr. Dowda, as well as Mr. Klein, to take the positions they did, following Petitioner's demotion, regarding his ineligibility to fill any vacant school bus driver position. The comment made by Mr. Dowda about which Petitioner complained in his charge had nothing to do with Petitioner's, or anyone else's, age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of the unlawful employment practice alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2007.
The Issue Whether Respondent committed the offenses alleged in the Notice of Specific Charges (NSC) filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact At all times, Petitioner has been a duly constituted School Board pursuant to Article IX, Florida Constitution, and Section 1001.32, Florida Statutes (2005).1 At all times relevant to this proceeding, Respondent has been a member of AFSCME and, as such, has been entitled to the benefits of the AFSCME Contract. Since November 15, 2002, Respondent has been employed by Petitioner as a school bus driver and assigned to the North Regional Transportation Center (NRTC). Until this incident, Respondent had not been disciplined by Petitioner. At all times relevant to this proceeding, Ms. Carter was a school bus attendant assigned to the NRTC. At all times relevant to this proceeding, Ms. Cone was a Field Operations Specialist assigned to the NRTC and had supervisory authority over Ms. Carter and Respondent. At all times relevant to this proceeding, Ms. Sweeting was the Director of Petitioner’s NRTC and had supervisory authority over Ms. Cone. At all times relevant to this proceeding, Ms. Moss was a District Director in the Office of Professional Standards and assisted with performance and discipline of employees. She ensured that Petitioner complied with applicable due process requirements during a disciplinary proceeding. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. School Board Rule 6Gx13-E-1.10 incorporates by reference Petitioner’s Handbook for School Bus Drivers, Aides, and Operations Staff (Handbook). Section 3 of the Handbook is captioned “School Bus Driver Guidelines and Procedures.” Section 3.4 of the Handbook, captioned “Duties,” imposes the following duties on a school bus driver: . . . Drivers must report defective equipment to their Dispatch Office in writing on the “Driver’s Request for Repair (DRR)” form. The report must be made as soon as possible after the problem is detected. . . . If the driver encounters a problem while operating the vehicle, the Dispatch Office must be notified immediately and the driver must wait for instructions from the garage. Section 3.3 of the Handbook, captioned “Regulations,” imposes the following responsibilities on a school bus driver: “. . . Prepare immediately an accident report after every accident involving the bus or bus passenger. This report must be completed with the driver’s supervisor. Section 10 of the Handbook is captioned “Operating Procedures and Safe Driving Principles.” Section 10.1 of the Handbook, captioned “School Bus Operation,” provides as follows: Drivers must perform a complete pre-trip inspection of their assigned buses at least twice daily. The pre-trip inspection must be accomplished before the driver departs the compound with the bus. Pre-trip inspection results must be documented on the form provided for this purpose. . . . On August 20, 2004, Respondent was assigned to drive the bus along school bus Route 22. There is a bridge on Northwest 42nd Avenue between Northwest 179 and 183 Streets (the 42nd Avenue Bridge). On August 20, 2004, the 42nd Avenue Bridge was undergoing construction work. There were barricades, construction cones, and other warning devices that were visible to approaching drivers. Because of the construction, the NRTC had informed school bus drivers not to cross the 42nd Avenue Bridge. Respondent testified that he did not hear that warning, but that he knew the bridge was undergoing construction work. On the morning of August 20, 2004, Ms. Carter was the bus attendant on the bus driven by Respondent. At the time of the accident described below, there were four students on the bus. On the morning of August 20, 2004, Respondent drove the bus across the 42nd Avenue Bridge. There was a dispute between the parties as to what, if anything, occurred while Respondent was driving the bus across the 42nd Avenue Bridge. The greater weight of the competent evidence established that the bus collided with an object on the 42nd Avenue Bridge or with the 42nd Avenue Bridge itself. This accident caused minor damage to the bus.2 Respondent did not immediately stop to inspect the bus. After Respondent crossed the 42nd Avenue, he continued on his route, picked up students, and stopped at North Dade Middle School (NDMS) to drop off students. While stopped at NDMS, Respondent inspected the bus and noticed that the outer tire on the right rear of the bus was flat. Respondent testified that the inner tire on the right rear of the bus did not appear to be damaged. Respondent did not contact or make any report to the transportation dispatch office at that time. Respondent drove the bus with the damaged tire to the NRTC bus parking area. Respondent made the determination that it was safe to drive the bus with the damaged tire without consulting anyone.3 After Respondent returned to the NRTC bus compound, he completed a Driver’s Request for Repair (DRR) form, which indicated that the right rear outer tire needed repair. Because of Respondent’s DRR, the bus was taken from the bus parking area to the garage. After Ms. Carter returned to the bus compound with Respondent, she reported to Ms. Cone that the bus had had an accident as it crossed the 42nd Avenue Bridge. The report was in the form of a message left for Ms. Cone on her voicemail. Ms. Cone received Ms. Carter’s message on August 20, 2004, and promptly went to the parking area and then to the garage. She inspected the bus at the garage. Ms. Cone, who has had extensive experience and training in accident investigation, observed that bus’ right rear tire rim was bent and disfigured and that the bus’ door was damaged. After inspecting the bus, Ms. Cone informed Ms. Sweeting of Ms. Carter’s report and of her own observations. Ms. Sweeting and Ms. Cone immediately thereafter went to the 42nd Avenue Bridge, where they observed markings on the bridge that were consistent with a vehicle coming in contact with the bridge. The white stony color of the damaged area of the bridge was consistent with the white stony color Ms. Cone had observed on the damaged tire rim. Although the markings on the bus and on the bridge were consistent with one another, there was no conclusive proof that the markings observed on the bridge were caused by the bus. Ms. Cone took photographs of the bus and the bridge on August 20, 2004. Ms. Cone subsequently delivered the photographs and a report of the accident to Ms. Sweeting. Prior to the final hearing in this matter, Ms. Sweeting was reassigned to the East Regional Transportation Center. When she left the NRTC, Ms. Sweeting left the photographs in a file on her desk. The photographs were subsequently lost or misplaced. Respondent’s qualified representative made a public record’s request for the photographs and was informed that they had been lost.4 A Conference for the Record (CFR) was conducted on August 23, 2004, with Ms. Sweeting presiding. Also present were Respondent and an AFSCME representative. Ms. Sweeting recommended further disciplinary action. A second CFR was conducted October 29, 2004, with Ms. Moss presiding. Also present were Jerry Klein (Petitioner’s Director of Transportation), Ms. Sweeting, two AFSCME representatives, and Respondent. Following the second CFR, Respondent was required to submit to a fitness-for-duty evaluation. Thereafter, Petitioner’s staff made the disciplinary recommendation that was subsequently adopted by Petitioner. The photographs taken by Ms. Cone were available for review at both CFRs. The Handbook does not define the term “accident.” School bus drivers employed by Petitioner are required to undergo training when they are first hired. During training, a driver is taught to immediately report to the transportation dispatcher if his or her bus hits an object and damage to the bus results. A driver is taught that such an incident is an accident. Despite that training, Respondent denied that there had been an accident and explained that he defined an accident as being when someone gets hurt on the bus, when he hits or kills someone, or when he damages the property of another. He would not acknowledge that an accident also includes damaging the bus by hitting a bridge or an object on a bridge. It is undisputed that Respondent failed to document pre-trip inspections on August 18, 19 and 20, 2004. Respondent testified that he actually performed the pre-trip inspections, but that he did no documentation because he could not find the pencil he usually kept on the bus after he returned from sick leave. Respondent’s testimony that he completed the pre-trip inspection but failed to complete the required paperwork, although self-serving, was not refuted. Consequently, it is found that Petitioner failed to prove that Respondent did not conduct a pre-trip inspection, but it did prove that Respondent failed to complete the pre-trip inspection report.5 The parties agree that Petitioner has the authority to discipline Respondent for just cause consistent with the principles of progressive discipline. Article XI, Section 1A of the AFSCME Contract provides, under the caption “Due Process”, in relevant part, as follows: . . . Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); letter of reprimand; suspension/demotion; dismissal. Article XI, Section 1B of the AFSCME Contract provides, in part, as follows: . . . [I]t is agreed that disciplinary action(s) taken against AFSCME . . . members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Article XI, Section 4C of the AFSCME Contract provides that termination of employment may occur if a member is guilty of non-performance of job responsibilities. Article XI, Section 3 of the AFSCME Contract provides as follows: If those cases where any employee has not complied with Board Policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order and sustains the suspension of Respondent's employment for 30 calendar days without pay. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 13th day of September, 2005.
Findings Of Fact At all times pertinent to the issues herein, Respondent, School Board of Hillsborough County, operated a school bus system for students attending the public schools run by it within the county. The program was and is administered by several different route coordinators who are authorized to hire the drivers for the buses operated on their routes. In September, 1985, Petitioner, William D. Gibbs, who had previously been working as a pipe fitter since 1972, applied for employment as a school bus driver in the Brandon area, for which Rosa Irene Barrow was the route coordinator. Mr. Gibbs could no longer perform the duties of a pipe fitter as a result of a work-related injury to his left knee incurred in 1984, but was fully capable of operating a bus. When he determined he could no longer work at his former trade, he began looking for other work, with a government agency, preferably, because of the benefits offered by most governmental employers. He applied for several county jobs and with the School Board with whose Job Line he kept in frequent contact. Mr. Gibbs submitted his written application for employment as a school bus driver in September, 1985, at which time he spoke with Ms. Barrow, discussing with her all aspects of his qualifications for employment as a school bus driver. One of the matters they discussed was the need for the applicant to have an appropriate place to park the bus when it was not in use. Petitioner assured her he had plenty of room to park it on the 9/10 acre grounds of the day care center his wife operated. Though Ms. Barrow claims she told Petitioner she didn't think a day care center was an appropriate place to park a school bus, it is found she made no comment to him regarding the suitability of the site he mentioned, nor did she give him any idea of whether or when he might be hired. Instead, she set up the required tests he had to take. Petitioner took and passed the required tests and was certified as qualified to drive a school bus. Several days later he spoke with Ms. Barrow who told him that they were not hiring drivers at that time, but to call back later on. Just about this same time, Mr. Gibbs also put in an application with the County's public bus system, (Heartline), and went to work there in January, 1986. He successfully completed his training program in February, 1986, and was assigned to work driving a bus, but quit before his probationary period was up because of abuse he received from his passengers and the danger of bodily harm. He was also accused of a fare impropriety but was later exonerated when the accusation against him was found to be based on a case of mistaken identity. When Mr. Gibbs left Heartline, he went to work for his wife at the child care center she operates, and still works there performing maintenance, running errands, working at the reception desk, and, periodically, driving the center's van. In May, 1986, he had another conversation with Ms. Barrow about his application for employment as a driver. Again he was advised that the county was not taking on any new school bus drivers. During the course of their conversation, Ms. Barrow asked Petitioner why he wanted to drive a school bus. Reportedly, she stated it was her experience that most men were not temperamentally suited to drive a school bus because they were over-aggressive in discipline. Ms. Barrow denies she said this, claiming that since he owned and operated a day care center, she felt he would be more likely to know what the problems were in dealing with children. If she did make that or a similar comment, however, she claims it was because the job is not for a lot of people and she tries to tell all her applicants that. In light of this and her testimony at hearing that she discusses with potential drivers the kind of behavior they can expect from the children, and the other less desirable working conditions which can be encountered, it is found that a comment such as is alleged by Petitioner could well have been made. In that regard, however, Petitioner admitted at hearing that the remark, instead of referring to "most" men, might have been "some" men. On this occasion, however, no judgement or other comment was made regarding Petitioner's proposed bus parking spot. After this second conversation with Ms. Barrow, Mr. Gibbs became suspicious of possible discrimination because of her comment about male temperament, but he had no real proof of that and did nothing. She again told him to call back in September, 1986, and when he did, he was met with the same response: they were not hiring but to call back in six months. When he did, he was again put off and told to call back at the end of the school year. This routine continued until he called in January, 1988, and spoke with Ms. Strickland, the route coordinator for another area, thinking chances of his success might be greater with another supervisor. When he identified himself and told her why he was calling, she told him that his September, 1985 application was no longer any good: employment applications were kept open only for 30 to 60 days, after which they are retired. Petitioner's application was kept on file, however, and was presented at the hearing in April, 1990. When, during discovery prior to hearing, Petitioner's counsel requested copies of all applications for driver positions from 1985 to the present, he was furnished with only those from 1989 to the present with the comment that all others were not available. Inquiry of administrative officials at the Board offices revealed such records were kept only one year before being retired and, apparently, no one could indicate where or under what conditions older documents were maintained. When Mr. Gibbs was told about his application by Ms. Strickland, feeling certain he was being discriminated against, he immediately filed his complaint of discrimination. Petitioner met, in his opinion, all the requirements to be a school bus driver. He lived in the area in which he proposed to drive; he was certified as a school bus driver; he passed all the tests given him; and, as he saw it, he had an appropriate place to park the bus. It is on this issue of an "appropriate" place to park that this matter turns. Ms. Barrow felt at the time of Petitioner's application, and believes to this day, that a child care center, with the frequency of ingress and egress traffic, and the presence of many young children, is not an appropriate place to manipulate and park a large bus. Even though she was initially mistaken as to the actual site in question, she had the correct site checked out by Mr. Saffold, her driver trainer and accident investigator, and checked it herself several times. Mr. Saffold, after numerous visits to the site, found it to be not appropriate for parking a bus due to the number of trees on the site and the other cars routinely parked there. In addition, there is a circular drive which gives little room for maneuvering. Ms. Strickland also went out to see Petitioner's site, and she, too, found it unacceptable for much the same reason cited by Mr. Saffold; the trees, the lack of maneuvering room, and the on- property traffic due to pick ups and drop offs. Ms. Barrow concluded that a day care center, with its heavy traffic of people coming and going, was not an appropriate place to park a 35 foot bus. She told Petitioner that he should find an "appropriate" parking place within a reasonable distance of his residence, such as at a church or other off-street facility. There is no central bus parking compound at Ms. Barrow's facility. There is, as Petitioner contends, ample space at the side of his facility to physically locate the bus when parked. That is not the basis for disapproval. The appropriateness of the site is, however, and the question of appropriateness is a subjective one with the decision on what qualifies and what does not left up to the route coordinator. Ms. Barrow, the coordinator for the area in which Petitioner applied, concluded the site proposed by Petitioner to park the bus was not appropriate. In this conclusion she was joined by another coordinator, Ms. Strickland, and a driver trainer and accident investigator, Mr. Saffold. In light of the evidence presented and the considerations pertaining, it cannot be said her conclusion was wrong. Within the Board's school bus operation, there are 12 route coordinators, none of whom are male, who supervise a total of in excess of 700 drivers. Within Ms. Barrow's area, she supervises 67 drivers, each of whom has between 2 and 4 daily runs. Each run is made up of 1, 2, or 3 schools. Drivers are hired, initially, as substitute drivers who fill in on an "as needed" basis for regular drivers. The substitute driver position is a part-time job which lasts for 10 instead of 12 months of the year. No set amount of working hours can be guaranteed. The average substitute driver works from 6.5 to 7.5 hours per day. Whereas regular drivers are guaranteed 6 hours work per day, substitute drivers get no guaranteed minimum and are paid only for the hours they actually drive. Substitute drivers may remain in that category for between 6 and 18 months. Regular drivers are hired from the ranks of substitute drivers. Driver criteria include a good driving record; completion of the 10th grade; and an "appropriate" place to park the bus. Board personnel consider the most critical of these to be the place to park the bus. It must be a safe, off- street location, and the problem of finding a suitable parking space is becoming more and more difficult. Of the 67 drivers under Ms. Barrow's supervision, 3 are male. During the 9 years she has served as a route coordinator, she has hired 3 or 4 male drivers. However, she gets very few male applicants and this is the basis for the low number of drivers. Ms. Strickland has 6 or 7 male drivers out of 68 full time and 11 substitute drivers. Of the applicants for drivers in her area, 3% to 4% are male. Mr. Saffold, who has worked for Ms. Barrow since March, 1981, has never found her to in any way discriminate against men. As a part of his job, he periodically goes out with the route coordinator to check on proposed parking sites for buses. On the 3 or 4 times he has done this, he has found the site to be inappropriate twice. Petitioner claims that the inappropriateness of his proposed parking site was not made an issue until after his complaint was filed. According to Mr. Saffold, it has been the continuing policy in Ms. Barrow's area to check the proposed parking site before giving the required tests to driver applicants. In the instant case, this was not done. Petitioner claims reimbursement for back pay. He filed his charge of discrimination on April 4, 1988. Any back pay due would then begin to accrue no earlier than April 3, 1986, two years prior to the filing of the charge. After being told there was no employment available for him at Respondent's Brandon bus barn, Petitioner took a job with the city bus line, Heartline, in January, 1986 and resigned in June, 1986. He earned $5.25 per hour during the entire time he was so employed. After leaving the city, he went to work at his wife's day care center where he earned $7.00 per hour and is still employed at $7.20 per hour. The job at Heartline, driving a city bus is clearly equivalent to that of driving a school bus. His duties at the day care center include periodic bus driving but is primarily of an administrative or maintenance nature and cannot reasonably be considered "substantially equivalent" to those of a school bus driver. Petitioner admits that after leaving Heartline, he did not inquire about or apply for other driving positions. Petitioner has requested attorney's fees and costs in the amounts of $22,500.00 and $1,471.85, respectively. Attorney LaPorte, testifying on behalf of Petitioner, indicated the Respondent's hourly fee of $150.00, when considered in light of his extensive experience and the considerable amount of research and preparation required herein, was not unreasonable. There was no evidence on the part of the Respondent to dispute Petitioner's claim and it is accepted as proven. The costs detailed in the exhibit attached to Respondent's post-hearing memorandum is also considered reasonable and is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition For Relief, alleging unlawful discrimination on the basis of sex, be dismissed. RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2016 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted two Proposed Recommended Orders - a long form and a short form. Both contain proposed findings of fact which are identical. The difference in Proposed Orders relates to the legal discussion which pertains to the proposed Findings of Fact. Proposed Findings 1 - 12 related primarily to procedural matters leading up to the final hearing. Finding of Fact 13 consists of several paragraphs which, for the purposes of this discussion, shall be re-numbered 13(a) through 13(m). 13(a). Rejected as not a proper Finding of Fact. The "concession" regarding liability appears to have been a part of proposed settlement negotiations and cannot be considered binding as to Findings of Fact after hearing which are based on evidence presented at the hearing. Attorney's fees are considered reasonable. 13(b). Accepted and incorporated herein. 13(c). Accepted and incorporated herein. 13(d). Accepted. 13(e). Accepted and incorporated herein. 13(f). Accepted and incorporated herein. 13 (g). Accepted and incorporated herein except for last sentence which is a restatement of evidence and not a Finding. 13 (h). Statistical information contained is accepted and incorporated herein. The balance, relating to the establishment of a prima facie case of discrimination is not a Finding of Fact, and is not supported by the evidence. 13(i) Rejected. 13(j). Accepted as to the facts but rejected as to Petitioner's conclusions as to the foundation for an adverse inference. 13(k). Accepted. 13(l). Accepted. 13(m). Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. & 11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein to establish that Ms. Barrow made some comment about "some" or "most" men not being emotionally suited for drive a school bus. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert H. Mackenzie, Esquire 17 McKendree Dr. Wesley Chapel, Florida 33544 Ronald W. Fraley Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 P.O. Box 639 Tampa, Florida 33601 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue 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 basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
