The Issue Whether the Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017.
The Issue The issue in this case is whether just cause exists for Petitioner to terminate Respondent from his job as a school bus operator.
Findings Of Fact Petitioner employed Respondent as a school bus operator since October 26, 1988. His performance was generally satisfactory, except that he sometimes failed to inform Petitioner when he was going to miss work or be late. Respondent's performance assessment for the 1992-93 school year, which was dated March 8, 1993, states that Respondent was effective in all areas except "demonstrat[ing] an energetic and enthusiastic approach to work, avoid[ing] excessive or unnecessary use of sick/personal leave." In this area, he received an mark of "inconsistently practiced." On November 30, 1993, Reta Uhrich (now Bingmer), who was Respondent's supervisor, issued a written reprimand to Respondent. The reprimand states that he was a "no show, no call" on the morning of November 30 for the second time. The first time was the morning of November 10. Respondent wrote on the reprimand: "was sick--no excuses should have called." Respondent's performance assessment for the 1993-94 school year, which was dated March 9, 1994, reflects that Respondent was effective in all areas but the one noted the previous year and three others. He received "inconsistently practiced" under "report[ing] to work as expected, unless an absence has been authorized"; "report[ing] to work on time as determined by scheduled route schedules"; and "complet[ing] necessary reports accurately and submit[ting] them on time." Respondent wrote on this assessment: "Late to work is because of a bad tooth which is not repaired." Ms. Bingmer issued a written reprimand to Respondent at the beginning of the 1994-95 school year. Dated August 26, 1994, the reprimand states that on August 25, 1994, Respondent was 35 minutes late; on August 24, 1994, Respondent called 20 minutes after he was due at his first stop to announce that he had overslept and would come to work for his second and third routes; on August 23, 1994, Respondent did not show up or call in the morning, showed up for the afternoon runs without first calling, and promised Ms. Bingmer that he would be on time in the future. The reprimand notes that Respondent claimed each time that he had a problem with a bleeding ulcer and could not afford medication. The reprimand warns that the next offense may result in a three- day suspension without pay. Ms. Bingmer issued Respondent a written reprimand on October 4, 1994, due to Respondent's failure to report for work or telephone to report off work for the entire day of September 23, 1994, and the morning of September 30, 1994. The reprimand states that Respondent assured Ms. Bingmer that his medical and personal problems were under control and that he would be at work each day on time. The reprimand concludes by noting that Ms. Bingmer had recommended that Respondent be suspended without pay for three days, but her supervisor ordered only verbal and written reprimands. The reprimand warns that any further problems could result in a "much stronger result." On October 25, 1994, Respondent, Ms. Bingmer, and others attended a predetermination conference. Respondent assured the representatives of Petitioner that he would improve his attendance. However, on November 10, 1994, Respondent called at 6:10 am and said his car would not start. Although this was notice of his absence, the notice was late. On November 18, 1994, Respondent called and said he would be out due to a toothache. On November 29, he called again, saying he would not be in because his car would not start. On December 2, 1994, Ms. Bingmer learned that the driver's license of Respondent had been suspended. She instructed him to go to the driver's license office immediately and resolve the problem, which involved his insurance. Respondent went to the driver's license office the same day and resolved the problem. However, he did not contact anyone representing Petitioner on the following workday, nor did he show up for work. Late in the day, he left a note for Ms. Bingmer stating that he would call early the following day and see her. But he neither called nor reported to work the following day, nor the day after that. The major problem created by Respondent was that he either gave no notice when he was going to miss or be late for work, or he gave inadequate notice. With notice, Petitioner could obtain a substitute bus driver. Without notice, children were left standing at their bus stops waiting needlessly for their bus. The employment contract provides that Petitioner may terminate an employee for "just cause." Petitioner has demonstrated that just cause exists for the termination of Respondent.
Recommendation It is hereby RECOMMENDED that the School Board of Lee County enter a final order terminating Respondent. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 30, 1995. COPIES FURNISHED: Daniel H. Kunkel Kunkel Miller & Hament Southtrust Bank Plaza Suite 785 1800 Second Street Sarasota, FL 34236 Robert J. Coleman Coleman & Coleman P.O. Box 2089 Ft. Myers, FL 33902 Patrick E. Geraghty Patrick E. Geraghty, P.A. P.O. Drawer 8 Ft. Myers, FL 33902-0280
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline her based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and the parties' stipulations, the following findings are made: The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is employed within the School Board's transportation department as a school bus driver. She has worked for the School Board for approximately seven years, and has not been subjected to discipline prior to the incidents leading to this case. At all times relevant to this proceeding, the employment relationship between Respondent and the School Board was governed by the collective bargaining agreement between the School Board and the Seminole County School Bus Drivers' Association, Inc., dated July 1, 1997, through June 30, 2006. Respondent is Hispanic. She was born in New York City, but was raised in Puerto Rico, speaking Spanish. She served as a field medic in the U.S. Army from 1980 to 1987. Respondent understands English, but is more comfortable communicating in Spanish. Kenneth Lewis has been the director of the School Board's Transportation Department since November 2003. Mr. Lewis is black. The Transportation Department consists of approximately 640 employees and 460 buses. Mr. Lewis is the supervising administrator and has three supervisors who report directly to him: the supervisor of routing, the supervisor of fleet services, and the supervisor of operations. Under the supervisor of operations are six area managers, each of whom is responsible for the day-to-day supervision of bus drivers and bus monitors. Raymond Williams and Kathy Dent are two of the area managers in the transportation department. Mr. Williams is black. Ms. Dent is white, and is a recent breast cancer survivor. Both Mr. Williams and Ms. Dent are monolingual speakers of English. Mr. Williams and Ms. Dent were Respondent's immediate supervisors during the 2005-2006 school year. Jennifer McKenzie has been a bus monitor for the School Board for about six years. A bus monitor's job is to team with the driver to assist children with disabilities on the bus. Ms. McKenzie is Hispanic. She speaks Spanish and English, but is more comfortable conversing in Spanish. Ms. McKenzie worked as a monitor on Respondent's bus from 2003 through September 2005. Early in the 2005-2006 school year, Respondent's bus was consistently running behind schedule. Ms. Dent met with Respondent about the situation. Respondent told Ms. Dent that Ms. McKenzie was arriving late to work, causing the bus to run late. Ms. Dent then spoke with Ms. McKenzie, who denied that she had been late coming to work. Ms. McKenzie later reported this conversation to Respondent, who in turn denied blaming the problem on Ms. McKenzie. For the next week, Respondent's bus continued to run late. Ms. Dent went onto Respondent's bus prior to the afternoon run to discuss the situation with Respondent and Ms. McKenzie. Ms. Dent stated that she was getting conflicting stories about the problem, and she needed to clear up matters. Ms. McKenzie stated that she had never caused the bus to be late. Respondent denied ever blaming Ms. McKenzie. Ms. Dent stated that Respondent had blamed Ms. McKenzie several times, most recently that morning when she came to Ms. Dent's office to state that Ms. McKenzie was the cause of the bus being late. Respondent continued to deny blaming Ms. McKenzie. Ms. Dent concluded the meeting by emphasizing to Ms. McKenzie that it was very important that she and Respondent work as a team, and that she was to be on board the bus at her scheduled time in the future. Ms. McKenzie again stated that she was not the cause of the problem, but said she would be there on time. Ms. Dent got off the bus. Both Ms. McKenzie and Ms. Dent testified that Ms. Dent did not raise her voice during this meeting or call Respondent a liar or make any other disparaging comment toward Respondent. After Ms. Dent left the bus, Respondent and Ms. McKenzie continued the conversation. Respondent told Ms. McKenzie that this proved her prior statements that Ms. Dent tells lies. Respondent pointed out that she had denied blaming Ms. McKenzie in front of Ms. Dent, and claimed that Ms. Dent never liked Hispanic people. Respondent stated that when Ms. Dent underwent chemotherapy, it had been applied to her brain rather than her breast and turned her brain to shit, which was why everything she spoke was shit. On September 7, 2005, it began to rain just as Respondent's bus was starting its route. Ms. McKenzie had difficulty closing the roof hatches, and Respondent stopped the bus to help her. Respondent then proceeded to drive the bus into a subdivision under construction, despite Ms. McKenzie's warning that there was no exit, and took several minutes driving through the narrow roads before she could find a way out. The dispatcher, Ronnie Dubose, called Respondent to ask why she was late. Respondent told Mr. Dubose it was because her monitor could not close the roof hatches. This angered Ms. McKenzie because the closing of the hatches had taken much less time than the trek through the subdivision. Ms. McKenzie asked Respondent why she blamed the monitor. Respondent denied having blamed Ms. McKenzie. Ms. McKenzie told Respondent that she heard her tell Mr. Dubose that it was Ms. McKenzie's fault the bus was late. Respondent insisted that Ms. McKenzie had misunderstood, and Ms. McKenzie was just as insistent that she had understood very well. In an effort to change the subject, Respondent began to denigrate Mr. Dubose, stating that "this stupid nigger" didn't even know what he was asking. Ms. McKenzie was upset about the entire situation, and especially about having been blamed once again for the bus running late. Immediately after the bus route was completed, Ms. McKenzie went looking for Ms. Dent to explain what had happened, but could not find her. She spoke to Mr. Williams about the situation, and asked him to explain her version of events to Ms. Dent. The next day, September 8, 2005, Ms. McKenzie was able to meet with Ms. Dent and Mr. Williams after the morning bus run was completed. She explained that the main reason the bus was late on the previous day was Respondent's getting lost in the subdivision construction. Ms. McKenzie indicated to Ms. Dent that there were other issues bothering her regarding Respondent. Ms. McKenzie told Ms. Dent that Respondent had called Mr. Dubose a "nigger," and that Respondent had said not to trust Ms. Dent and that Ms. Dent's chemotherapy had turned her brain to shit. Ms. McKenzie stated that this was not the first time she had heard Respondent call a black co-worker a "nigger." About a week earlier, Respondent had approached Mr. Williams to ask for more time to complete her route, and Mr. Williams declined to do so before checking his route sheet. When Respondent returned to the bus, she called Mr. Williams a "stupid nigger" in the presence of Ms. McKenzie. Ms. McKenzie told Ms. Dent and Mr. Williams that Respondent had referred to Euletha Byrd-Campbell, a black dispatcher, as a "nigger." Respondent also called Mr. Lewis a "stupid nigger" after he refused to allow Respondent to post a flyer about a Hispanic Christmas party for transportation personnel. Ms. McKenzie stated that "nigger" was Respondent's common term for black people, and that she called white people "rednecks." Mr. Williams and Ms. Dent convened a meeting with Ms. McKenzie and Respondent on September 9, 2005. The meeting was conducted in English. At this meeting, Respondent admitted to making the alleged remarks about Ms. Dent's chemotherapy. When Mr. Williams asked if she had ever referred to a fellow employee as a "nigger," Respondent initially denied using that term. Then she stated that she had used the term in reference to Mr. Williams, but only in repeating what another bus driver, Claudia Robles, had said about him. According to Respondent, Ms. Robles became upset and called Mr. Williams a "nigger" when she learned that Mr. Williams had used a gift card she had given him for Christmas to buy pizza at the mall. During the meeting, Respondent gave no indication that she was unaware of the English meaning and usage of the word "nigger." At the conclusion of the meeting, Mr. Williams directed Ms. McKenzie and Respondent to submit written statements summarizing their versions of the facts. Ms. McKenzie submitted her statement on September 13, 2005. Respondent never submitted a written statement. Later on September 9, 2005, Mr. Williams and Ms. Dent met with Claudia Robles. Ms. Robles denied being angry with Mr. Williams about the gift card and denied ever calling him a "nigger." At the request of Mr. Williams, Ms. Robles submitted a written statement on September 14, 2005. At some point during this initial investigation, Ms. Dent learned from another Hispanic bus driver, Jean Rodriguez, that Respondent had made statements about Ms. Dent's condition on a separate occasion from that described by Ms. McKenzie. In the transportation department's compound, there are picnic tables at which the employees sit during the work day. Ms. Rodriguez sometimes sat at the tables with Respondent, and heard Respondent claim to have told Ms. Dent "that the cancer she had on her breast went to her head and it turned like shit." Ms. Rodriguez told Respondent she was wrong and walked away from the table, while Respondent laughed.2 Mr. Williams and Ms. Dent advised Julie Murphy, the supervisor of operations in the transportation department, of the matters discussed at the meetings of September 8 and 9, 2005. Ms. Murphy passed the information along to Mr. Lewis, the director of the transportation department. After learning the details of the allegations, Mr. Lewis decided to conduct an investigation of the matter. He spoke to John Reichert, the School Board's director of human resources and professional standards, and to Brenadette Hardy- Blake, the School Board's equity coordinator, to inform them of his intention to conduct an investigation. Mr. Reichert and Ms. Hardy-Blake agreed that Mr. Lewis should investigate.3 Ms. Dent and Mr. Williams each provided Mr. Lewis with a written statement summarizing the results of the interviews conducted on September 8 and 9, 2005. Mr. Lewis set up a series of interviews, commencing with the complainants, Ms. Dent and Mr. Williams. At the time of these interviews, Mr. Lewis had in hand the written statements filed by all the witnesses, including those of Ms. Dent and Mr. Williams. Mr. Lewis first interviewed Ms. Dent. He noted that she was very upset about Respondent's statements. Ms. Dent stated her intention to file a formal complaint against Respondent. At the hearing, Ms. Dent testified that Respondent's actions interfered with Ms. Dent's ability to act as Respondent's supervisor, because it was clear that Respondent had no respect for her. Ms. Dent felt personally violated by Respondent's comments about her cancer. Further, Ms. Dent believed that Respondent had undercut her authority with the other employees, particularly the black employees, who would not look at the white supervisors with the same respect knowing that Respondent was using the term "nigger" with impunity. Mr. Lewis next interviewed Mr. Williams. The two men discussed Mr. Williams' conduct of the earlier meetings. Mr. Williams stated that he wanted to pursue a formal complaint against Respondent. Mr. Williams did not believe he could continue to supervise Respondent knowing how she felt about him. He believed that Respondent's actions created a hostile work environment and fostered an environment of disrespect for his authority. Finally, Mr. Williams told Mr. Lewis that he could not be confident as to Respondent's treatment of children of color riding on her bus. On September 21, 2005, Mr. Lewis interviewed Respondent.4 At the outset of the interview, Mr. Lewis explained that Respondent had been accused of referring to Mr. Williams as a "nigger" in conversations with other transportation department employees, of making derogatory references to Ms. Dent's chemotherapy, and of telling the other employees not to trust Ms. Dent. Respondent denied calling Mr. Williams a "nigger." She stated that the word was not a part of her vocabulary, and denied even knowing the meaning of the word. Respondent admitted making comments about Ms. Dent, but told Mr. Lewis that she had only said that Ms. Dent's chemo had gone to her brain. Mr. Lewis asked Respondent if she could name anyone to corroborate her version of events. At first she said she could not, but thought more about it and gave Mr. Lewis the names of Ivette Sanchez and Millie Maldonado, two fellow bus drivers. Mr. Lewis interviewed the two bus drivers referenced by Respondent. Ivette Sanchez recalled Respondent telling her not to trust Ms. Dent, but was not sure whether she had heard Respondent make the comments about chemotherapy turning Ms. Dent's brain to shit. Ms. Sanchez was certain she had not heard Respondent refer to anyone as a "nigger." Mr. Lewis did not ask Ms. Sanchez to submit a written statement. Carmen "Millie" Maldonado told Mr. Lewis that she did not recall Respondent making the comments about Ms. Dent's chemotherapy, but that she might have heard Respondent make them at the picnic tables. Ms. Maldonado was similarly hazy regarding Respondent's use of the word "nigger." She might have heard Respondent say the word, but Respondent never said it directly to Ms. Maldonado. Mr. Lewis did not ask Ms. Maldonado to submit a written statement. At the hearing, Ms. Maldonado clarified that the only time she could recall hearing Respondent use the term "nigger" was in describing the controversy and investigation that is the subject of this case. Ms. Maldonado never heard Respondent refer to another person as a "nigger" or a "redneck." On September 22, 2005, Mr. Lewis interviewed Ms. McKenzie, questioning her about the items included in her written statement, which included Ms. McKenzie's version of Respondent's statements about Ms. Dent's chemotherapy and Respondent's references to Mr. Williams as a "nigger." Ms. McKenzie confirmed to Mr. Lewis that she had heard Respondent make the comments about Ms. Dent's chemotherapy turning her brain to shit and had heard Respondent refer to Mr. Williams, Mr. Dubose, and Mr. Lewis5 as "niggers" in conversations with her. Mr. Lewis asked Ms. McKenzie if she could have misheard Respondent using the Spanish term "negro" when she thought Respondent said "nigger." Ms. McKenzie stated that she knew the difference between the two words. She and Respondent spoke to each other mostly in Spanish, and there is no Spanish word for "nigger." Ms. McKenzie was positive that "nigger" was the word used by Respondent. Also on September 22, 2005, Mr. Lewis interviewed Ms. Robles, the bus driver whom Respondent claimed to have been quoting when she used the word "nigger" in relation to Mr. Williams. Ms. Robles denied ever calling Mr. Williams a "nigger," or even becoming angry over Mr. Williams' use of the gift card to buy pizza. She also told Mr. Lewis that she had heard Respondent refer to Mr. Williams and other black employees as "niggers." At the hearing, Ms. Robles testified that, after the Latin Christmas party in 2004, Respondent complained to her that the disc jockey had played nothing but "nigger music." Ms. Robles also testified that she heard Respondent say, "What does that nigger think he is, he's new," after Mr. Lewis refused her request to post the Latin Christmas party flyer. Ms. Robles testified that it was simply part of Respondent's vocabulary to call black people "niggers." Throughout the investigation, Mr. Lewis kept Mr. Reichert and Ms. Hardy-Blake apprised of his findings. At the conclusion of his investigation, Mr. Lewis was convinced that Respondent had made the offensive statements of which she stood accused. Mr. Lewis wrote a memorandum summarizing his investigation and concluding as follows: In summary, based upon the input and/or statements that were received from various persons who had knowledge of the incidents under investigation, it is determined that the driver, Ms. Mirella Hernandez, did: Refer to Mr. Ray Williams as nigger, violating District policy creating a hostile environment. Use the term nigger while referring to Ms. Euletha Byrd-Campbell, violating District policy creating a hostile environment. Use the term nigger while referring to Mr. Ronnie Dubose, violating District policy creating a hostile environment. Made the statement as described by Ms. Jennifer McKenzie, while referring to Ms. Kathy Dent, violating District policy creating a hostile environment. Tell other employees not to trust their Administrator violating rules of ethics, creating a hostile environment. It should also be noted that Ms. Hernandez has previously received less than satisfactory rating on previous assessments related to her ability to maintain a professional relationship and attitude toward colleagues and subordinates. Mr. Lewis submitted his report and copies of all written statements to Mr. Reichert, Ms. Hardy-Blake, Ms. Dent, Mr. Williams, and Respondent. Ms. Dent and Mr. Williams met with Ms. Hardy-Blake, and submitted witness affidavits for her file. After the report was submitted, Mr. Lewis and Mr. Reichert had a lengthy meeting with Deputy Superintendent George Kosmac. At the conclusion of the discussion, Mr. Kosmac concurred with Mr. Lewis' recommendation that Respondent's employment with the School Board should be terminated. Mr. Lewis drafted a letter to Respondent, dated October 7, 2005, which was hand-delivered to Respondent on October 10, 2005, along with Mr. Lewis' report and all of the witness statements collected during the investigation. The letter stated, in relevant part: Ms. Julie Murphy, Supervisor of Operations, reported to me that you had made disparaging and racist comments to other transportation employees concerning Area Managers Kathy Dent and Ray Williams, and other personnel, within the transportation community. It was also stated that you were heard telling employees not to listen to Kathy Dent, circumventing her ability to carry out her duties as an Area Manager. I spoke to you on Wednesday, September 21, 2005, inquiring about the allegations lodged against you. You admitted saying to other employees in reference to Ms. Dent, "the chemo went straight to her head," but denied saying, as alleged by others that, "Kathy's chemo, instead of being to her breast, they applied it to her brain and that is why her brain was burnt and the only thing left was shit in her brain and that is why she only speaks shit." You also denied ever referring to Ray Williams, Euletha Byrd- Campbell, Ronnie Dubose and Kenneth Lewis6 as "niggers," as alleged. You also denied telling other employees not to listen to Ms. Dent. In conversations with Area Managers, Kathy Dent and Ray Williams, they confirmed that you did in fact openly admit to the allegations lodge [sic] against you and went on to state that you made the admissions without remorse. They also said that you admitted, in the presence of Ms. Jennifer McKenzie, to the allegations lodged against you. In conversation with Ms. Jennifer McKenzie, Ms. Claudia Robles, and Mr. Jose Romero on September 21st, 22nd, and October 4th, they all confirmed that they heard you, at some point in time, make one or all of the statements alleged, in reference to the aforementioned parties. As a result of the facts found during our inquiry, it is determined that you knowingly made disparaging statements to other employees in reference to Kathy Dent, Ray Williams, Euletha Byrd-Campbell, Ronnie Dubose and Kenneth Lewis. Your actions constitute conduct that is unbecoming of an employee of the School Board of Seminole County, Florida, and further represents a violation of School Board policies 6.06—- Employee Nondiscrimination and 9.63-— Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees. Therefore, I am recommending to the Superintendent that you be suspended from your duties, and further that your employment with the Seminole County Public Schools Transportation Services, be terminated for the reasons and violations referenced above. After Mr. Lewis' recommendation and accompanying materials were delivered to Respondent, Mr. Reichert met with William Vogel, the School Board's superintendent, to discuss the termination recommendation. Dr. Vogel concurred in the recommendation and directed Mr. Reichert to draft a letter, to be issued over Dr. Vogel's signature, suspending Respondent from her duties and recommending to the School Board that Respondent be terminated from her position. Dr. Vogel's letter, dated December 8, 2005, stated in relevant part: I have received a copy of the letter that you received from Mr. Kenneth Lewis, Director of Transportation Services wherein he has recommended that you be suspended from your duties, and further that your employment be terminated. His recommendation is based upon the fact that you made statements and/or demonstrated conduct that constitutes conduct unbecoming of an employee of the Seminole County Public Schools, and is a violation of School Board policy 6.06 and 9.63. After a careful and lengthy review of the facts surrounding this recommendation, which is supported by the information contained in [the] investigation completed by Mr. Lewis, be advised that I have accepted the recommendation as submitted by Mr. Lewis. Therefore, pursuant to applicable Florida Statutes, be advised that you are suspended with pay effective at the close of business on December 9, 2005. Additionally, be advised that I will file a recommendation with the School Board of Seminole County at their regularly scheduled meeting to be held on Tuesday, January 10, [2006], that you be suspended from your duties without pay effective January 11, 2006, for the reason referenced above. . . . Further be advised that I will file an additional recommendation with the School Board of Seminole County, Florida that your employment be terminated for the reasons and violations identified above. . . . Mr. Lewis handed Mr. Vogel's letter to Respondent on December 9, 2005. A few days later, Paul Sanchez, Executive Director of the Umbrella Organization for the unions representing non-management employees such as Respondent, contacted Mr. Reichert on Respondent's behalf. Mr. Sanchez and another union representative met with Mr. Vogel, Mr. Reichert, and Mr. Kosmac. Mr. Sanchez contended that the entire matter was a misunderstanding centered on Respondent's difficulty with English. He also contended that the investigation was flawed because Mr. Lewis, Mr. Williams and Ms. Dent were intimately involved despite the fact that they were the alleged victims of Respondent's derogatory comments and racial slurs. Mr. Sanchez believed that the investigation became very emotional, and that the situation could be resolved by transferring Respondent. Dr. Vogel agreed to place a hold on his recommendation pending an inquiry by the School Board's legal staff into the issues raised by Mr. Sanchez. Following the legal staff's review of the investigation, Dr. Vogel decided to move forward with his recommendation that Respondent be suspended without pay and terminated as a School Board employee. By letter, dated February 28, 2006, Dr. Vogel informed Respondent's representatives of his intention. At the final hearing, several of Respondent's co- workers testified on her behalf. Jose Romero, an area manager who acted as translator during Ms. McKenzie's interview with Mr. Lewis, testified that he has known Respondent as a co-worker for over four years and never heard her use the word "nigger" or "redneck." Mr. Lewis' report contained the following paragraph: During the interview with Ms. McKenzie, Mr. Jose Romero accompanied her to translate or explain anything she did not understand. When the question of the use of the word nigger was asked to Ms. McKenzie, Mr. Romero said that Ms. Hernandez uses the term when referring to Ray Williams, Euletha Byrd- Campbell and Ronnie Dubose. He heard her use it at the table where many of the Hispanics congregate in front of the dispatch office. At the hearing, Mr. Romero flatly denied making the statements attributed to him in Mr. Lewis' report. Mr. Lewis was not questioned about this contradiction. Mr. Romero testified that he knew Respondent and Ms. McKenzie as co- workers, and considered Ms. McKenzie to be his friend. Mr. Romero attended the meeting in Mr. Lewis' office at the request of Ms. McKenzie, who did not trust the other translators proposed by Mr. Lewis, because they were all friends of Respondent. Ms. McKenzie testified that she trusted Mr. Romero. Ms. McKenzie's testimony allays any suspicion that Mr. Romero changed his testimony to protect Respondent. It appears more likely that Mr. Lewis' report incorrectly attributed the quoted statements to Mr. Romero.7 Mr. Lewis did not request a written statement from Mr. Romero. Carmen Padilla, a bus monitor who worked on Respondent's bus for a little more than one month, testified that she never heard Respondent use the term "nigger." Jose Galindo, a bus driver who shared a household with Respondent for ten years, testified that it is "impossible" that the word "nigger" could be part of Respondent's everyday vocabulary. Mr. Galindo testified that he has never heard Respondent use the word. Respondent and he socialized with black friends, and she never called them "niggers." Mr. Galindo did not recall ever hearing Respondent use the term "redneck." Respondent testified on her own behalf at the hearing. Respondent's version of the incident on the school bus was different from that of Ms. Dent and Ms. McKenzie. According to Respondent, Ms. Dent did not appear interested in hearing what happened to make the bus run late. Ms. Dent had already met with Ms. McKenzie and apparently accepted Ms. McKenzie's version of events. Respondent testified that Ms. Dent told her she lacked common sense and called her a liar, and that it was her anger at being so labeled that caused Respondent to lash out with her comment that the "chemo went up to her head" after Ms. Dent left the bus. Respondent also recalled telling Ms. McKenzie that what Ms. Dent had said was "bullshit." Respondent testified that, at the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she told Ms. Dent that she meant no harm by her comments, that she was merely striking out in anger. Respondent tried to explain that the source for "the comment about her chemo going to her head" was a "very famous [Latino] song" with a lyric that says "the bilirubin goes up to your head."8 Ms. Dent was screaming at Respondent, telling her that if she had said she was sorry, Ms. Dent would have forgiven her. Respondent testified, "How can you say that you're sorry to a person that is screaming, that is agitating things, and that I see there are lies?" Respondent could not remember ever telling people not to trust Ms. Dent. At the meeting, Respondent felt cornered. She testified that she was never informed that she was entitled to have a union representative present. Respondent could not recall who they said was accusing her of using the word "nigger," but Respondent brought up the name Claudia Robles. Mr. Williams asked Respondent if she had ever called him a "nigger," and Respondent denied having done so. Respondent told Mr. Williams that she had used the word when translating a letter for another bus driver. The letter apparently described a situation involving Mr. Williams and this other driver, and referred to Mr. Williams as a "nigger." Respondent testified that Ms. Dent threatened her, saying that "we're gonna take this all the way . . . I'm going to make sure that you get suspended, I'm going to do everything possible to get you suspended." From this statement, Respondent surmised that she would have a meeting with Mr. Lewis in the near future, after which she would be fired. Respondent denied that Mr. Williams or Ms. Dent ever asked her to submit a written statement. Respondent testified that, after the meeting with Ms. Dent, Mr. Williams, and Ms. McKenzie, she went to the picnic tables where the transportation department employees gathered between shifts. Everyone at the table knew something was going on, and people asked Respondent why she had been called in for a meeting with her supervisors. Respondent then told them she was being accused of using the word "nigger," and of making the comments concerning Ms. Dent's chemotherapy. Respondent could not remember who called her in to meet with Mr. Lewis on September 21, 2005. She walked into the room and saw that Mr. Lewis, Ms. Dent, and Mr. Williams were already there. She was not told that she could bring a union representative to the meeting, and was not offered a translator. Mr. Lewis first questioned Respondent about her driving, then asked about the "nigger" and chemotherapy comments. Respondent testified that she read from a letter she was composing, to make Mr. Lewis "see my culture, where I come from, something like that." Respondent never finished the letter and did not submit it to Mr. Lewis. Respondent told Mr. Lewis that she didn't know the meaning of the word "nigger," and at the hearing, claimed she was not sure if she knew it was a racial slur at the time of the meeting with Mr. Lewis.9 She testified that during seven years in the Army, she never heard anyone say the word. She lived in Alabama, Georgia, and Texas, and never heard anyone say "nigger." Respondent testified that she later had a second meeting with Mr. Lewis regarding allegations by Ms. Robles that Respondent was harassing her. Respondent testified that during this meeting, Mr. Lewis asked her if she had called him a "nigger." Respondent denied the allegation, and tried to make Mr. Lewis understand that Ms. Robles was the person who used the word "nigger." Respondent testified that Ms. Robles used the word "nigger" several times, on social occasions away from work. Respondent stated that Ms. Robles' pronunciation was so poor that the word was unintelligible. Respondent understood what Ms. Robles was saying only when another woman chastised Ms. Robles for using the word. Respondent testified that Ms. Robles also used the word "redneck." Respondent testified that she never referred to any transportation department employee as a "nigger." The word is not part of her day-to-day vocabulary. Respondent uses the Spanish word "negro" "all the time, because that's the word I was raised with." The term simply denotes color, and does not carry the derogatory meaning of "nigger." Respondent's testimony is not persuasive as to the issue of her use of the word "nigger." The greater weight of the evidence supports the finding that Respondent did refer to Mr. Williams, Ms. Byrd-Campbell, Mr. Dubose, and Mr. Lewis as "niggers," that she did so because the word "nigger" was simply her manner of referring to black people when they angered her and were not present to hear, and that she knew the derogatory meaning of the word. Respondent's changing story as to when she learned the meaning of the word did not enhance her credibility. She initially denied ever having used the term "nigger," then admitted to using the word when quoting Ms. Robles, then later claimed not to have known the meaning of the word. The fact that several employees claimed not to have heard her use the term does not establish that Respondent never used the term. At most, it establishes that there were some fellow Hispanic employees with whom Respondent did not feel comfortable in indulging her use of the word. Respondent's testimony, as well as that of her supportive witnesses, does raise questions about the investigative process employed by Mr. Lewis. Respondent testified that Mr. Lewis never asked her to submit a written statement, testimony that is somewhat corroborated by the fact that Mr. Lewis did not ask Ms. Sanchez, Ms. Maldonado, or Mr. Romero to submit written statements. Further, Mr. Romero credibly denied having made the statements attributed to him in Mr. Lewis' report. Taken together, these facts establish that Mr. Lewis' report functioned more as a brief for the prosecution than as an even-handed investigative summary. Nonetheless, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. All of the relevant witnesses testified in person at the hearing, and the undersigned was able to make an independent judgment as to their veracity and credibility, without reliance upon Mr. Lewis' report. School Board Policy 6.06, adopted July 19, 2005, is titled "Employee Nondiscrimination Policy." Its stated purpose is as follows: The Seminole County School Board is committed to providing educational and work environments free of all forms of harassment or discrimination. No employee or applicant for employment shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination or harassment in any program, activity, employment, or conditions of employment in Seminole County Public Schools on the basis of race, color, national or ethnic origin, gender, disability, marital status, age, religion, political or religious beliefs, or any other basis prohibited by law. Nor shall any person be subjected to retaliation for reporting or complaining of alleged discrimination or harassment or participating in any way in the investigation of such allegations. The employees of Seminole County Public Schools shall not engage in such discrimination or harassment, and such conduct is also prohibited for any third party while participating in any activity sponsored by Seminole County Public Schools. The definition of "racial harassment" is set forth at School Board Policy 6.06 II.B. as follows: Racial harassment is verbal (oral or written) or nonverbal (physical or graphic) conduct that degrades or shows hostility or aversion toward any employee based upon race, color or national origin when such conduct substantially interferes with the employee's job performance or the terms and conditions of his/her employment, or creates an intimidating, hostile, or offensive work environment. Racial harassment, as defined above, may include but is not limited to the following conduct: Epithets and slurs; Negative stereotyping; Threatening, intimidating, or hostile acts; or Written or graphic material that shows hostility or aversion toward an individual or group. There can be little question that "nigger" constitutes a racial epithet and/or slur, and that Respondent's verbal conduct in using the term degraded or showed hostility toward fellow employees based upon race.10 The more difficult question is whether Respondent's verbal conduct created "an intimidating, hostile, or offensive work environment." Respondent never used the term "nigger" directly against the persons at whom the epithet was directed, and she was not in a supervisory capacity as to those persons, two factors that militate against terming Respondent's actions "intimidating" in the common workplace sense of the term. However, the testimony of Mr. Williams as to the hostile and offensive work environment created by Respondent's verbal conduct is persuasive. Mr. Williams credibly believed that his effectiveness as a supervisor was undermined by Respondent. He felt hurt and disrespected, and did not think he could continue to work with Respondent. The testimony of Ms. Dent was also persuasive. Though she was not the target of the racial epithet, Ms. Dent credibly believed that her authority over and respect from the department's black employees could only be undermined if she allowed Respondent to use the term "nigger" openly and with impunity.11 It is found that Respondent's verbal conduct constituted "racial harassment" as defined in School Board Policy 6.06 II.B. Employee and student training procedures are set forth in School Board Policy 6.06 IV., as follows: IV. Training All employees and students shall receive training each year to insure that the entire education community understands this policy, what constitutes prohibited harassment, discrimination, or retaliation and the consequences for engaging in such conduct. Each principal and cost center supervisor shall ensure that this policy is specifically reviewed with employees, including administrators, instructional personnel, and noninstructional personnel, with volunteers, and with students on an annual basis. It is the responsibility of each supervising administrator in the school system to ensure that this policy is reviewed with all other employees over which he/she directly or indirectly has supervisory authority. Employees must clearly understand that conduct believed by them to constitute harassment should be reported to the principal, supervising administrator, or the District Equity Coordinator. They also must clearly understand that if an employee complains to them regarding alleged harassment, they should immediately refer that employee to the principal, the supervising administrator, or the District Equity Coordinator for appropriate action under this policy. Any personnel who may be called upon to conduct investigation must clearly understand how to do so, including the circumstances in which immediate or interim measures are necessary or appropriate. All employees, as well as students and volunteers, also must clearly understand that they and others supporting them will not suffer any retaliation or recrimination on account of their reporting of any alleged harassment or on account of participating in an investigation of any alleged harassment. Respondent contends that the annual in-service training sessions provided to transportation department employees by the School Board were inadequate to place Respondent fully on notice as to the meaning of "racial harassment." Respondent admitted that she attended such a training session on July 25, 2005, of which a videotape was admitted into evidence. The "training session" was a small part of a two-hour transportation department general meeting to prepare for the 2005-2006 school year. Mr. Lewis presided over the meeting, and recognized some drivers for perfect attendance and gave out safe driving awards. Mr. Vogel and Mr. Kosmac addressed the assembly. Other School Board employees gave presentations on issues including road closings, field trips, payroll and union negotiations, training, care for exceptional students, the employee assistance program and employee benefits. After all of these presentations, Mr. Lewis announced that a video was about to be shown dealing with sexual and racial harassment and fraternization. He told the assembly that "we are required" to show the video, and that each employee present would be required to sign a document verifying that he or she had watched the video. The video was started without further introduction. A title on the screen indicated that it was a taped School Board training session from April 2005 on the topic of sexual and racial harassment and fraternization.12 The presenter identified herself as Sally Jenkins from the professional training department. Ms. Jenkins commenced her presentation with a discussion of sexual harassment, setting forth the definition and examples of "quid pro quo" sexual harassment and "hostile environment" sexual harassment. As Ms. Jenkins was going through examples of what constitutes "hostile environment" sexual harassment, the tape abruptly jumped into the middle of her discussion of racial harassment. Lost in this jump was any discussion of examples of racial harassment. It was unclear whether the jump was caused by a problem in duplicating the tape that was presented into evidence, or whether this was actually what was shown to the assembly on July 25, 2005.13 Respondent complains that the "training" provided by the School Board was entirely inadequate to meet the requirements prescribed in School Board Policy 6.06 IV. The entire presentation was in English, and no examples of what constitutes a "hostile environment" or "racial harassment" was provided in the video presentation. Respondent contends that the presentation was not designed to ensure that Spanish- speaking employees "clearly understand" what constitutes prohibited harassment or discrimination. Respondent correctly observes that this taped training presentation was treated in a pro forma manner at the July 25, 2005, assembly. If the videotape in evidence correctly conveys what was shown to the assembly, much of Ms. Jenkins' presentation on racial harassment was not shown. However, these objections would give rise to a defense only if Respondent could plausibly claim that she relied on the training for her knowledge of the matters giving rise to this case. In other words, Respondent would have to claim she was unaware that "nigger" was a racial epithet or that promiscuous use of the term "nigger" in the workplace would be deemed hostile and offensive by her co-workers, and that she was completely reliant on the School Board's training to be made aware of these matters. Respondent's contention that she did not know the meaning of "nigger" has been rejected. Whatever the inadequacies of the training provided at the July 25, 2005, assembly, Respondent cannot plausibly claim them as a defense in this case. The guidelines for School Board investigations of harassment or discrimination are set forth at School Board Policy 6.06 VI., as follows, in relevant part: Guidelines for Investigations At any time, the District Equity Coordinator may, in his/her discretion, appoint an appropriate person to investigate a report of harassment or discrimination. All such investigators will be appropriately trained in how to conduct an investigation pursuant to this policy and will not be persons alleged to have any involvement in the situation at issue. As found above, Mr. Lewis was the district equity coordinator prior to becoming director of transportation. As district equity coordinator, Mr. Lewis received extensive training in the substantive areas of harassment and discrimination and in the proper procedures for conducting investigations. Aside from his status as one of the persons whom Respondent allegedly called a "nigger," there is no question that Mr. Lewis was "an appropriate person to investigate" the allegations brought to him by Ms. Dent and Mr. Williams.14 The relevant portion of School Board Policy 6.06 VII, relating to the School Board's grievance procedure, is as follows: Grievance Procedure The following steps will be followed if an employee feels that he/she has experienced prohibited discrimination or harassment at work or during an activity sponsored by Seminole County Public Schools: Level I: If the employee believes that he/she has been discriminated against or harassed, the employee should file a written complaint with his/her building principal, supervising administrator, or the District Equity Coordinator. If the building principal or supervising administrator is allegedly involved, the complaint should be filed directly with the District Equity Coordinator. If the complaint is filed with the principal or supervising administrator, he/she shall immediately forward a copy to the District Equity Coordinator. The principal, the administrator, or the District Equity Coordinator must then schedule a conference with the employee to find out more about the complaint and explore possible resolutions. The conference should be held as soon as possible in light of the nature of the allegations and, in any event, must be held within five (5) working days of the date of filing. (Emphasis added) Respondent contends that the underscored language should have required Mr. Lewis to recuse himself from the investigation due to his personal involvement in the allegations against Respondent. Ms. Hardy-Blake testified that the School Board's interpretation of the quoted language is that a supervisor should not conduct the investigation only where he or she is the alleged perpetrator of the harassment or discrimination. Nothing in the policy prevented Mr. Lewis from conducting the investigation. As suggested above, many of Respondent's complaints about the process would have been rendered nugatory had Mr. Lewis stepped aside upon learning that Respondent was alleged to have called him a "nigger." Mr. Lewis credibly testified that the allegation had no effect on his conduct of the investigation, but Ms. Hardy-Blake or Mr. Reichert should have considered the appearance of allowing the alleged subject of an inflammatory racial epithet to continue as the lead investigator. However, as found above, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. This finding is based on the sworn testimony and demeanor of the witnesses at the final hearing, not on the statements in Mr. Lewis' report. Respondent's comments about Ms. Dent, though outrageous and cruel, were not violative of the policy against racial harassment. The School Board has alleged that Respondent's conduct violated School Board Policy 9.63, titled "Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees." The policy provides as follows, in relevant part: The School Board recognizes that education of children is a process that involves a partnership between a child's parents, teacher, school administrators, and other school and School Board personnel. The School Board recognizes that parental participation in their child's educational process through parent/teacher conferences, classroom visitation, serving as a school volunteer (Dividend), serving as a field trip chaperone, PTA participation, and other such service is critical to a child's educational success. For that reason the School Board welcomes and encourages parental participation in the life of their child's school. However, from time to time parents and other visitors to schools and District facilities sometimes act in a manner that is disruptive to a school or other District facility and which is threatening and/or intimidating to school and District employees. The purpose of this policy is to provide rules of conduct for parents, other visitors to schools, and District employees which permit and encourage participation in school or District activities, while at the same time enabling the School Board to identify and deal with those behaviors which are inappropriate and disruptive to the operation of a school or other District facility. It is the intent of the School Board to promote mutual respect, civility, and orderly conduct among district employees, parents, and the public. It is not the intent of the School Board to deprive any person of his or her right to freedom of expression. The intent of this policy is to maintain, to the greatest extent reasonably possible, a safe, harassment-free workplace for teachers, students, administrators, other staff, and parents and other members of the community. In the interest of presenting teachers and other employees as positive role models, the School Board encourages positive communication and discourages disruptive, volatile, hostile, or aggressive communications or actions. Expected Level of Behavior School and School District personnel will treat parents and other members of the public with courtesy and respect. Parents and other visitors to schools and District facilities will treat teachers, school administrators, other school staff, and District employees with courtesy and respect. Unacceptable/Disruptive Behavior Disruptive behavior includes, but is not necessarily limited to: Behavior which interferes with or threatens to interfere with the operation of a classroom, an employee's office or office area, areas of a school or facility open to parents/guardians and the general public and areas of a school or facility which are not open to parents/guardians and the general public; Using loud and/or offensive language, swearing, cursing, using profane language, or display of temper; Threatening to do bodily or physical harm to a teacher, school administrator, school employee, or student regardless of whether or not the behavior constitutes or may constitute a criminal violation; Damaging or destroying school or School Board property; Any other behavior which disrupts the orderly operation of a school, a school classroom, or any other School Board facility; or Abusive, threatening, or obscene e- mail or voice mail messages. The remaining sections of the policy deal with the procedure by which a parent may file a complaint as to a staff member's behavior, the authority of school personnel to direct disruptive persons to leave school or School Board premises, the authority of School Board personnel to deal with members of the public who are verbally abusive, and the procedure by which School Board employees should deal with abusive, threatening or obscene e-mail or voice mail messages. Respondent correctly observes that School Board Policy 9.63 makes no mention of employee discipline for failure to abide by its provisions. Read as a whole, the Civility Policy seems generally directed at the interactions of School Board personnel with the public, and more particularly at protecting School Board personnel from abusive language and behavior by members of the public. Absent some clearly defined enforcement mechanism as to employees, the Civility Policy appears to be an aspirational rather than a formal disciplinary standard. This finding, however, begs the question of whether Respondent's conduct toward Ms. Dent may be cause for discipline under the general heading of "conduct unbecoming" a School Board employee, pursuant to case law precedent. In that sense, School Board Policy 9.63 II may be read as setting forth examples of behavior that fall into the category of "conduct unbecoming" a School Board employee, thereby giving the employee notice that such behavior is unacceptable and subject to discipline. This issue is resolved in the Conclusions of Law below.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Seminole County School Board, issue a final order that terminates the employment of Respondent, Mirella Hernandez. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2007.
The Issue The issue in the case is whether the Sarasota County School Board (Petitioner) has cause for terminating the employment of Virgil Mae (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a school bus driver. The Respondent was subject to the provisions for "classified" employees as identified in the Collective Bargaining Agreement (CBA) between the Petitioner and the "Sarasota Classified/Teachers Association." Under the terms of the CBA, the Petitioner's school bus drivers must comply with various requirements including: possession of a commercial driver's license (CDL) and automobile insurance, passage of an annual health physical, passage of a "reflex" or dexterity test, and completion of in-service training. In May of each year, the Petitioner makes physicians available to provide health physicals for school bus drivers at no charge. In the alternative, the Petitioner pays the insurance co-payment for drivers who choose to obtain physicals from their personal physicians. School board policy requires that the reflex test be conducted within 30 days of the physical. Accordingly, the Petitioner provides reflex testing in May, so that it may be completed in conjunction with physicals. The reflex testing is also at the Petitioner's expense. Prior to May of each year, the Petitioner posts flyers at the school bus compounds to remind bus drivers of the requirements and advise of the dates of the tests. The Transportation Department also broadcasts the information through a radio dispatch system that provides communications links to all drivers. Written notices are also sent to the drivers. Most drivers complete both tests during May, but drivers may complete the tests in their own time. If a driver chooses to obtain a physical through a private physician, the Transportation Department will schedule the reflex test to accommodate the driver's physical, so that both are completed within 30 days. The Respondent asserted that he was unaware of the requirement that the reflex test be conducted within 30 days of the physical, but the greater weight of the evidence establishes that he has been a bus driver for the Petitioner since October 2003, that he has complied with the annual requirement in previous years, and that the policy has not changed during the term of his employment. The evidence further establishes that the Respondent had not completed the physical even by the time of the administrative hearing. Each fall, during the week preceding the commencement of school, the Petitioner's Transportation Department conducts a "Safety School," during which the school bus drivers receive in- service training sufficient to meet the relevant requirements applicable to drivers. School bus drivers are paid their regular wages to attend Safety School. On the second day of Safety School, the Petitioner conducts a "bid day," through which drivers bid on routes based on their employment seniority. Under the terms of the CBA, school bus drivers must have the valid CDL and have completed the health physical and in-service training no later than the time of the initial bid. Article XXI, Section M, of the CBA provides as follows: An employee who fails to return to duty for each of the first three work days of a new school year and who fails to notify his/her cost center head of his/her intentions will be considered to have abandoned his/her job and may be terminated. At the hearing, the Respondent asserted that he did not return to work because he believed his insurance had lapsed and that his driver's license was suspended and that he was trying to resolve the matter so that he could return to work. He further asserted that he contacted his supervisor and advised him of the matter, by leaving the information with the receptionist who answered the calls. At the hearing, the receptionist acknowledged that the Respondent had called, but stated that he declined to leave a message or a telephone number to which the supervisor could have returned the calls. She testified that according to the "Caller ID" telephone number information, the Respondent was calling from a storage company. The evidence establishes that the Respondent did not appear for the first three work days of the 2008-2009 school year and, in fact, was absent through the first eight days of the school year, extending over a two-week period. The Respondent's explanation for his failure to return to work lacks sufficient credibility and is rejected. Additionally, the evidence establishes that the Respondent failed to obtain the required annual health physical or to complete the in-service training prior to bid day and, accordingly, was not in compliance with the requirements of the CBA. During his employment by the Petitioner, the Respondent has been cited for excessive absences on several occasions. At the hearing, the Respondent asserted that the absences were related to health matters. The evidence establishes that the Respondent failed to supply medical documentation for some of the absences, and they were deemed to be "unexcused."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Virgil Mae. DONE AND ENTERED this 24th day of December, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2008. COPIES FURNISHED: Virgil Mae 1575 20th Street Sarasota, Florida 34234 Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent is guilty of unlawful discrimination in employment, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner in its transit department from 1993 through July 11, 2003. At all times, Respondent worked as a bus driver. In 2002, Respondent suspended Petitioner for his failure to make announcements to the passengers concerning the Americans with Disabilities Act (ADA). In 2002, Petitioner again failed to make the required ADA announcements to the passengers and engaged in a confrontation with a wheelchair- bound passenger as to the appropriate place for the bus to stop and discharge the passenger. On April 29, 2003, the director of the transit department notified Respondent that he was dismissed from his job as a bus driver due to the incidents in late 2002. Petitioner appealed the termination and attended a hearing in June 2003. At the hearing, Petitioner and Respondent agreed to settle the dispute by Respondent's converting the termination to a 60-day suspension without pay and reinstating Petitioner, at the end of 60 days, to his former bus driver position. The agreement also provided that Respondent would terminate Petitioner for any future violations of Respondent's rules. The agreement required Petitioner to return to work on June 30, 2003. Petitioner did not return to work on June 30 or at anytime through July 11, 2003. On July 11, 2003, the director of the transit department issued a letter informing Petitioner that he was terminated for failing to return to work, as required, on June 30, 2003, or at any subsequent time through the date of the letter. At the hearing, it was apparent that Petitioner had understood that he was to report back to work on June 30, 2003, and chose not to do so. Petitioner testified that his reason for failing to return to work was somehow related to discrimination against him by Respondent for wearing religious head garb. However, on cross-examination, Petitioner admitted that he had worn this religious article, without objection, since the resolution of a dispute about it on August 6, 2001. In fact, Petitioner failed to report back to work for reasons having nothing to do with discrimination, and Respondent terminated him for this failure, not for any reason involving discrimination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 10th day of May, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Zegory Kalouska Post Office Box 601012 North Miami Beach, Florida 33160 Eric A. Rodriguez Miami-Dade County Attorney Office 111 Northwest 1st Street, Suite 2810 Metro Dade Center Miami, Florida 33128
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
